20 Aug Frequently Asked Questions About Probate
Probate Court Frequently Asked Questions
1.What is Probate?
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.
2. Why is Probate needed?
The main function of probate is transferring a decedent’s property to the decedent’s heirs and beneficiaries. If there is no property to transfer, you may not have a need for probate. However, probate also provides a means for creditors to collect outstanding debts and for the government to collect any necessary taxes on the decedent’s estate.
3. How long will probate take?
An estate that does not have many assets and has no outstanding debts, can usually be settled within six months. This period can be lengthened if an estate tax return is required or if there are outstanding debts that must be paid to creditors. Keep in mind, creditors may make claims on the estate for six months. If there are complex assets, such as a business or properties located in several states, probate can last for longer than a year.
4. Where do I need to have the estate Probated?
The probate process will usually occur in the county where the decedent permanently resided at the time of death. However, if the decedent owned property in another state, you will most likely have to go through “ancillary probate” in that state as well because real estate is governed by the laws of the state it is located in.
5. Can I go through probate without an attorney?
While there is no requirement to use an attorney, it is always a good idea to have one, as the probate process can be rather tricky. Minor omissions or missing forms can further slow the probate process and even get you into trouble with the court. Additionally if there is a risk of the will being contested or of any disgruntled family members, an attorney can be an excellent third-party who can efficiently probate the estate without having to deal with too much of the family’s dynamics.
6. How soon should the estate go through probate?
There is no limit to when the estate may be probated. You could do it right after the decedent’s death or wait 5 years to probate the estate. However, it is easier if the estate is probated as soon as possible after the death of the decedent, especially if there are any outstanding debts. If an estate is not filed for probate in a timely manner, creditors or other interested parties may be appointed by the court to administer the estate.
7. What is the difference between “testate” and “intestate”?
If a person is to die “testate” that means that the person died with a will that enumerates how the property is distributed. If a person dies “intestate” that means that the person died without a will and that their estate will be administered according to the relevant statute.
8. What if there is a will, but the will is unclear?
If the will of a decedent is unclear, it is possible to file an action to construe the will in probate court. The probate court will then hold a hearing to determine the intent of the decedent. It is highly recommended you seek the counsel of an attorney if you are dealing with an unclear will.
9. Can I contest a will being probated?
Yes, any interested party may contest the validity of the will. However, the will contest must be filed with the court within three months of the filing of probate. Otherwise, the party will waive their right to contest the will.
10. If I have a Living Trust, will my estate need to be probated?
If you have a Living Trust, or a revocable trust, and your assets were funded to your trust during lifetime, your estate will not have to go through probate. Instead, your estate will be administered after your death according to your trust. However, if you have a pour-over will that is attached to your trust, the pour-over will most likely will need to go through the probate process.
11. How is the value of an estate calculated?
The value of an estate is calculated by adding together all of the property (real and personal) that was solely owned by the decedent at the time of the decedent’s death. Property that was owned joint with rights of survivorship or assets that are payable to a named beneficiary (such as life insurance policies with a named beneficiary) should not be included in the total. Remember that any outstanding debts or loans are not to be deducted from the value. An attorney or financial professional will be able to help you determine the value of a decedent’s estate.
12. What happens to my business after I die?
If you are the sole owner of a business and your business is included in your will, then your business will need to be probated just like any other property you may own. Probating a business is tedious and stressful, so if you are the sole proprietor of a business it is highly suggested you create a trust that deals with the business after you die. For more information about probating a business, please read this article for more information.
13. How can I avoid probate altogether?
To avoid probate, you will need to create a Trust that holds legal title to all of your property at the time of your death. Do not think by not creating a will or trust you will avoid probate, as estate’s without any estate planning documents will be administered by the probate court according to state statute.
14. How much will a Probate attorney cost?
The amount of fees charged by an attorney to probate an estate will vary depending on the attorney you hire. However, the amount is largely determined by the amount of assets the estate has and how complex the proceedings are. In Ohio, the attorney fees must be approved by the probate court and are not paid until the probate court has finalized the estate.
15. What happens in full estate administration?
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.
Authored by: Mary E. Zoldak
Serving Columbus and Central Ohio
MacLaren Law LLC provides counsel for the estate and business planning needs of Columbus, Ohio and its surrounding communities, including: Bexley, Dublin, Upper Arlington, Worthington, Westerville, Pickerington, Pataskala, Delaware, Plain City, New Albany, Gahanna, Newark, Zanesfield, Marysville, Powell. MacLaren Law also serves Franklin, Delaware, Knox, Licking, Union, and Muskingum counties.