Probate Law and Estate Planning: MacLaren Law

21 Jul Probate Procedures

 

Five Types of Probate Proceedings

Probate is a formal legal process that serves as the first step in administering the estate of a decedent and giving proper recognition to the decedent’s will, by resolving all claims and distributing all property under the will. The probate court will appoint an administrator (intestate) or executor (testate), who will be in charge of administering the estate and distributing the assets to the intended beneficiaries.

Under Ohio law, there are five basic types of probate proceedings regarding the estate administration of a resident decedent. To qualify for a certain proceeding you must meet the different statutory regulations that are attached to each procedure. The five different types of probate are: Release from Administration; Summary Release from Administration; Real Estate Only; Will for Record Only; and Full Administration.

 

Full Administration

An estate will have to go through full administration if it does not qualify for any of the other types of probate proceedings. The first step of administering a Full Administration is to probate the Will, if there is one, and to apply for the appointment of the fiduciary. It is important that the fiduciary be appointed as quickly as possible, depending on the assets of the estate. The fiduciary in a full estate administration are either the Executor (testate) or Administrator (intestate). After the fiduciary is appointed, then the assets may be gathered and the appropriate appraisals are obtained by the fiduciary. This includes contacting retirement funds, life insurance policies, transferring all bank accounts into an estate account, obtaining the decedent’s mail, securing the decedent’s vehicle, and determining a maintenance plan for the decedent’s real estate.

Once the fiduciary gathers the assets and determines their value, an inventory of assets must be filled out and filed with the probate court. This inventory provides the probate court and the estate beneficiaries with a snapshot of a decedent’s assets as of the decedent’s date of death.

If there are any debts, creditors, or taxes to be paid, they will be paid out of the estate’s assets. The remaining assets will be distributed to the beneficiaries of the estate. If the beneficiaries receive any of the distributed assets before the six month period for creditors to file claims has expired, the fiduciary will have to obtain a signed acknowledgment from the beneficiaries that they recognize they are liable for any estate debts up to the amount of the assets they were distributed. After everything has been distributed, the fiduciary will file the final accounts and then the probate court will close the estate.

Release from Administration

Release from Administration is available for estates that meet the monetary limits under Ohio statute. In Ohio, if the surviving spouse is receiving all of the decedent’s estate either through the decedent’s Will, by statute under Ohio Revised Code 2105.06 (governing intestate estates), or by statute under Ohio Revised Code 2106.13; the surviving spouse has proof of a valid marriage under Ohio law; and the surviving spouse is not receiving more than $100,000 then the estate qualifies for Release From Administration.

An estate may also qualify for Release from Administration if someone other than the surviving spouse is receiving assets from the decedent. The monetary limit for anyone else to qualify for Release from Administration is $35,000.

To being the filing process in Ohio for Release from Administration, the interested party must submit an application to the probate court and evidence of proper notice from the next of kin. The probate court will then determine the creditors will not be prejudiced and then declare the estate relieved from administration. This type of probate process can typically be achieved in a day. Keep in mind, this probate process does not get rid of any creditor claims on the estate.

 

Summary Release from Administration

In Ohio, to qualify for Summary Release from Administration, a person who is not the surviving spouse of the decedent who has paid or is obligated in writing to pay the decedent’s funeral and burial expenses may apply for an order granting summary release from administration if the value of the assets does not exceed the lesser of either $5,000 or the amount of the decedent’s funeral and burial expenses.

If there is a surviving spouse who is entitled to all of the assets of the estate and the total assets are less than $40,000, the assets can be transferred to the surviving spouse by a summary administration. Additionally, if the surviving spouse has paid or is obligated in writing to pay the decedent’s funeral and burial expenses, an additional amount, the lesser of either $5,000 or the amount of the decedent’s funeral and burial expenses may be claimed by the surviving spouse for a maximum of $45,000.

 

Real Estate Only

If the decedent died owning an interest in real estate; the transfer of the decedent’s real estate is based on Ohio Revised Code 2105.06 (Statute of Descent and Distribution),Ohio Revised Code 2106.13 (Family Allowance), or the decedent’s will; the decedent’s date of death was longer than 6 months prior; and no creditors have filed claims against the estate, then the estate is able to file for a Real Estate Only administration.

 

Will for Record Only

If there are no known assets to be probated, a Will still needs to be presented to the probate court as soon as possible after the death of the decedent. If a person withholds a will intentionally, negligently, or without any reasonable cause may lose the right to inherit.

Authored by: Mary E. Zoldak