Probate is the legal process through which a deceased person’s estate is administered and distributed. It involves validating (“probating”) the deceased person’s will (if one exists), appointing an executor or administrator (both called the “fiduciary”) to manage the estate, settling any debts and taxes, and distributing the remaining assets to the rightful beneficiaries in accordance with the will or the law. The probate process is governed by the Ohio Probate Code.
Types of Estates
In Ohio, there are generally three types of “estates” that will be filed in the probate court: a “full estate,” a “relief (sometimes called a ‘release’) from administration,” and a “summary release.” Most of our cases will fall into the full estate category. Relief or releases from administration are shortened probate cases for cases under a certain dollar amount (generally, $35,000 for a non-spouse and $100,000 for a surviving spouse)–provided the exact values of all the assets can be proven with documentation. A full estate may always be opened for a decedent who otherwise qualifies for a release. Sometimes, a full estate is needed regardless of the value of the assets. The most common reasons for this would be if the client does not know the extent of the assets being probated or does not have a bank statement or other evidence of the value of the property.
Anatomy of a Full Estate in Ohio
Today, we will be talking about full estates in Ohio. An Ohio full estate consists of three major stages:
- Application
- Inventory
- Account
Depending on the circumstances, each of these stages may be easy or difficult, or require other filings to clear up issues or achieve the purposes of the fiduciary. As a general rule, everything becomes a lot easier if all of the heirs and beneficiaries are willing and able to sign waivers at all stages. A probate estate becomes more challenging in many scenarios which are difficult to list exhaustively. Here are a few examples:
- One or more of the heirs or beneficiaries are minor children. Minors cannot sign waivers (although their parents may waive under certain circumstances if the minor is under 16) and they should not inherit real estate unless a guardianship is opened. In these cases, we must attend hearings and file separate lawsuits in the probate court to gain the ability to sell land or other property.
- One or more heirs is not cooperative. This will greatly extend the timeline for closing an estate for similar reasons as those experienced when a minor is an heir or beneficiary.
- The address of one or more heirs is unknown. A person without a good address must be served by publication, which can take eight weeks or more.
- The decedent held stocks and bonds. A fiduciary must often follow a lengthy and complicated procedure for transferring brokerage accounts and registered securities out of the decedent’s name.
- The location of the assets are unknown. There is no central financial database for determining where the decedent banked or held assets. The fiduciary must in this case become a detective to determine where to look for assets.
- It is undetermined whether a financial asset had a designated beneficiary. If an asset has a designated beneficiary, it is not part of the decedent’s estate. If an asset like life insurance or a retirement account is the principal asset of the estate, it is often impossible to determine whether that asset is actually subject to probate without opening an estate to become vested with authority to obtain information.
- The decedent had tax issues. It can be very difficult to obtain information about the decedent’s tax situation from the IRS.
- There are claims against the estate. Claims against an estate by creditors can prolong the close of the administration of the estate until they are resolved.
Here is a general description of the stages of a full estate.
Application
The probate process in Ohio begins with the filing of an Application to Administer Estate. This application is usually filed by the executor named in the decedent’s will, by a family member if no will exists, or an attorney. The application must be filed with the probate court in the county where the decedent resided at the time of death. Along with the application, the original will (if one exists) and a certified copy of the death certificate must be submitted. The court will review the application and approve it if all the heirs have waived their right to administer, or will schedule a hearing on the application if not all have waived. Once the application is approved, letters of authority are issued to the executor or administrator, granting them the legal authority to manage the estate. In most circumstances, the fiduciary of an intestate estate will be required to post a bond equal to double the value of the personal property estimated to be in the estate.
Inventory
Once appointed, the fiduciary is responsible for identifying and gathering all assets of the decedent’s estate. This includes real estate, bank accounts, personal property, and any other assets owned by the decedent at the time of death (and do not have designated transfer-on-death beneficiaries). The executor must then file an Inventory of Assets with the probate court. This document provides a detailed list of all the estate’s assets, along with their values (either by appraisal or by reliable evidence like tax values and bluebook values). The inventory, once filed, will be scheduled for review about 30 days from filing, and will require the fiduciary to submit waivers or serve all the beneficiaries of notice of the hearing. Any interested party may object to the inventory before the hearing date, whereupon the court will schedule another hearing for deciding on the objection. Once the Inventory is approved, the fiduciary will be permitted to sell estate assets.
Account
The final step in the Ohio probate process is the filing of the estate’s Final Account. This document lists all receipts and disbursements of the estate categorized in a form required by the court, supported by copies of checks, receipts, invoices and the like, showing that receipts equal disbursements and allowing the court to confirm that estate proceeds have been properly distributed. The account is also used to calculate the fiduciary and attorney fee permissible under the local rules of the court. Once filed, the court again sets a hearing a month or more out, and will require the fiduciary to serve notice of the hearing to each beneficiary or submit signed waivers. Any interested party will have an opportunity to object at any time before the hearing, which will trigger the scheduling of another hearing by the court.
The account filing requires care to produce. Some courts will reject an improperly filed account upon submission, but other courts will wait until the hearing to reject it and make the fiduciary start over again, delaying the process.
If the Final Account is accepted by the court, the court will issue an entry discharging the fiduciary.
Conclusion
The estate process can be simple or very complicated depending on many factors, not the least of which is the experience of the fiduciary as to how to handle the assets, what to present to the court, and when certain filings are needed. It is not usually possible to know all the factors that will complicate an estate before filing, although we can usually give you a pretty good idea of what to expect.
Need help with your Ohio probate case? We offer a FREE 15-minute phone consultation with an attorney to discuss what we need to do to open your probate estate. Book a Consultation on our live calendar today or call us at 216-352-4243, let us know your situation, and we’ll get started right away.
