Ohio Estate Planning, Trust & Probate Law
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
- It specifically resolves all claims and distributes the
decedent's property under a valid will or the state laws of
- 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;
- 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
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
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
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
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
The 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
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
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
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.