Serving the communities and surrounding areas of Canton and Akron, Ohio.
What is Probate?
Probate is a court supervised process with respect to the administration of the Estate of a deceased person.
- It specifically resolves all claims and distributes the decedent's property under a valid will or the state laws of heirship.
- Protects the instructions of the deceased;
- Confirms either an executor or administrator as the personal representative of the decedent's estate;
- Protects the interest of heirs and creditors of the estate; and
- Provides third persons with the necessary legal assurances relative to dealing with the decedent's property.
Under Ohio law, a probate of an estate is generally necessary when an individual passes away leaving assets in excess of $35,000 that do not pass via beneficiary designation, joint tenancy, or were not held in trust.
For example, under the following circumstances, a probate would not be necessary
- Decedent left an insurance policy with a death benefit over $35,000 (or less for that matter) payable to a living individual.
- Decedent had bank and brokerage accounts held jointly with another living individual (in such case, those accounts would pass automatically to the joint account holder).
- Decedent owned an IRA (or other retirement related account) with a value in excess of $35,000 (or less) which named a living individual as the beneficiary.
- Decedent owned real property held in joint tenancy in which the other owner(s) were living.
A probate of an estate, however, would most likely be necessary under the following events:
- Decedent died with a bank or brokerage account held solely in his name with a value in excess of $35,000.
- Decedent owned real property held solely in his name.
- Decedent owned a life insurance policy with a death benefit over $35,000 in which no beneficiary was named or the named beneficiary predeceased the decedent.
- Decedent owned an IRA (or other retirement related account) with a value in excess of $35,000 in which no beneficiary was named or the named beneficiary predeceased the decedent.
- Decedent owned a vehicle and does not have a surviving spouse or a beneficiary named on the certificate of title.
Even if the total assets are less than $35,000, it still may be necessary to file some paperwork with the Probate Court in Ohio.
Probate Process in Ohio
Probate Estates are under the jurisdiction of the Probate Court in Ohio. If required, a probate would be established in the County of the decedent's residence at the time of death, or in the County where decedent owned property (real estate or personal property) if the decedent resided, for example, in another state at the time of death.
Typically, an uncontested probate can be concluded within 6 months from the initial filing with the Probate Court.
If the Decedent died with a valid Will, which named an individual to act as Executor, then such person would generally be appointed by the Court to act in such capacity and Letters of Authority would be issued. These Letters of Authority basically give the Executor the same authority to act as if the decedent were still living.
If the decedent died without a Will or if decedent's Will did not name an Executor, then the Court would appoint and Administrator of the decedent's estate.
The Probate Process: the outline below is designed to give a general overview of the many steps involved in the probate process and how our firm guides you through the requirements of the Court. Again, it is a very general overview of the typical issues that arise during the administration of an uncontested estate.
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, addresses and degree of relationship of all heirs;
- Determining the names, ages and addresses of all beneficiaries, if there is a Will;
- 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 and preparing and filing estate tax returns when required;
- 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 provision of notices;
- Hearings in court;
- An appraisal of the assets of the estate;
- An inventory of the assets;
- An accounting of funds;
- Final transfer of all assets to beneficiaries;
- Termination of the probate proceeding; and
- Discharge of the executor or administrator by the probate court.
Because of the complexity of these procedures, the assistance of an attorney is usually needed.
Cost of Probate
The legal fees associated with probate in most states, including Ohio, must be reasonable. By local rules, the Stark County Probate Court has established the following fee schedule as a guideline
- 4.5% of the first $100,000
- 3.5% of the next $300,000
- 2.5% for all amounts over $400,000
he personal representative (i.e., the Executor or Administrator) is also entitled to a statutory fee for their services performed relating to the administration of the estate. In addition to the ordinary statutory fees authorized by the Probate Code, the Court generally awards fees for services relating to the following
- The sale of real property;
- Locating beneficiaries; and
- Preparation of the estate tax returns (if required).
- Extraordinary fees are those services provided to the estate over and beyond those required during the ordinary administration.
Trust and Other Non-Probate Assets
What happens if the decedent had a trust with assets or had assets that were owned jointly with another person or named a beneficiary (for example, a joint bank account between husband and wife or a retirement plan that named a child as beneficiary? Must those assets also be reported to the probate court? The simple answer is NO. As described above, only assets in the decedent's name alone without a beneficiary named must be reported to the probate court.
However, that does NOT mean that there is no reporting required. If the decedent had a trust, many of the same steps described above are necessary to administer the trust - the benefit of the trust is that there is generally no need to involve the probate court. Whether a trust exists or not, there may be other filing requirements (for example, an estate tax return filing).
Therefore, we recommend that every family contact an attorney after the death of a loved one to confirm whether any legal work is necessary to settle the estate.