What is Probate Law? An Overview of Ohio Probate Law and How It Works
You have probably come to a point where either you’re ready to plan your own last will and testament, or it’s fallen upon you to initiate that process for a loved one. In your pursuit to understand where to even begin, you’ve come across the term “Probate Law” and have never heard of that word before. Oh great, more “legalese” for you to figure out. Don’t worry, I’m going to break it down for you here to help you understand not just what Ohio’s Probate Law is, but how it works.
I’m Amanda Waltz, an Estate Planning and Probate Attorney from Northwestern Ohio. I’ve been practicing Probate Law since 2014 after receiving my Juris Doctorate from Capital University. With a combined 12+ years of Legal and Compliance world experience, I am dedicated to serving each client with the utmost honesty and professionalism that can sometimes be hard to find in the world of law. I practice estate planning, estate administration, stepparent adoptions, guardianships, name change, business formation, and real estate transaction law.
What is Probate Law?
Let’s start with the official definition of “Probate” straight from Merriam-Webster:
The origin of the word “Probate” comes from the Latin word “Probare”, meaning “to prove”. You can get an in-depth history of the probate process over at Franklin County Probate Court’s website.
Essentially, Probate Law is the formal legal process to review and appoint ownership of a person’s assets after his or her death. This would be anything left in that person’s name, such as a home, vehicle, bank account, investments, etc. This would also include determining guardianship of any children under the age of 18. Probate will happen regardless of whether the person has a will or not.
How Probate Law Works in Ohio
First, the court appoints a representative to administer the assets. This could be a named executor from the will or a designated professional administrator. That person will receive a document as legal proof that they are allowed to obtain the assets of the person who passed. Once the assets are obtained and inventoried, the debt must be paid first for items such as a home or vehicle to still be eligible for inheritance. Any remaining assets are then distributed to the beneficiaries.
Determining how long this process will take depends on the complexity of the estate. It could be anywhere from a few months to years.
Probate Process With a Valid Will
In the best-case scenario, the deceased person had a valid will in place. If this is the case, the probate process is pretty simple. The court will verify the validity of the document and name the executor or administrator that was nominated in the will.
The executor must carry out the will to its specifications and does not have the ability or legal right to make changes.
Probate Process Without a Valid Will
When the person who has passed away does not have a valid last will and testament in place, it is called dying “intestate”. There are a few reasons the state may determine a will invalid such as not being structured properly as detailed in the “Method of Making a Will” revised code 2107.03, fraud, lack of understanding or competency by the person creating the will, or undue influence on the individual.
This makes the Probate process more complicated as we must look to the Ohio Laws for how the estate is to be administered.
The court will still appoint a representative qualified to manage the assets. A surviving loved one can apply to become an executor of the estate, or the court may appoint a third-party administrator. You can find the application to probate a will and a list of Ohio’s probate forms here. Applying to become the executor does not entitle you to inherit the property of the estate. If there are multiple applicants the court will have a hearing to decide who should administer the estate.
The priority for distributing the deceased’s estate would be as follows according to Ohio Law:
- The surviving spouse would receive the full estate (If the surviving spouse is not the legal parent to any surviving children, this becomes more complicated. Contact me and we’ll discuss your specific situation.)
- If there is no spouse, the estate would be divided equally among his or her children
- In the case there is no surviving spouse or children, it would go to the deceased’s parents
- At this point, if there are no surviving immediate family members, the court would begin to consider more distant relatives.
- In a situation where the court cannot determine any rightful heirs or living relatives, the full estate would go to the state of Ohio.
That last one is a big reason for creating an estate plan while you’re still living. Even if you feel you don’t have enough assets or people in your life to pass an inheritance on to, you certainly don’t want everything to default to state ownership. At the very least you could choose a charitable organization to receive your estate.
When is Probate Required?
Probate is required when a person leaves behind assets that are only in their name with no designated beneficiary. This can be when there is no will, when there is a will and assets need to be accessed to transfer to the beneficiaries, or when there’s a trust and one or more assets were not titled to the trust. In that case, we use a pour-over will to probate those assets and transfer them to the trust.
A few examples of assets would be a home that is listed only in the deceased’s name, a solely owned bank account, a vehicle only registered to that person, any stocks or bonds in their name, and any personal items of value. Certain assets that name a beneficiary may not need to go through probate, such as a life insurance policy.
There is also an option for a simplified probate process called “summary release from administration” in the case of a small estate as described in Ohio Revised Code 2113.031. This can occur if:
- the surviving spouse is entitled to the full estate and it is valued at under $40,000 + $5,000 allowance for funeral and burial expenses
- Or, if you are not the surviving spouse, but have paid for the funeral and burial expenses and the assets are valued at less than $5,000.
How much does an estate have to be worth to go to probate?
$1.00. That’s a bit of an exaggeration, but I’ve had a situation where a client paid several hundred dollars to get a vehicle out of the decedent’s name when the vehicle’s value was only $250.
How long do you have to file probate after death?
There’s no timeline to apply for probate, but once you apply there are deadlines to meet. Now, most creditors have 6 months to file a claim with the probate court to collect a debt. Depending on the situation, it can be advantageous to wait at least 6 months before you file to probate someone’s will. For example, if you open up the estate at 6 months and 1 day after the decedent died, Mastercard can’t collect the decedent’s outstanding debt.
The whole process of estate planning and estate administration can seem daunting, but that’s why I choose to practice Probate Law because I enjoy the organization of it and seeing a person’s final wishes carried out to the end.
If you are ready to begin planning your estate or find yourself in a position where you need to learn and understand the Probate Laws in Ohio, contact me to review your situation and I will advise you on the next best steps.
What is Estate Planning? Why is it so Important? - Amanda Waltz Law, LLC
[…] written a blog post previously explaining Probate Law. That is more about the court process and proceedings after a person passes. However, this post is […]