What is Probate?
“Probate” is the name of the process that occurs when the estate of a person who has died is legally distributed to their heirs, beneficiaries, and any creditors. This process of distributing assets takes place whether or not the deceased individual had a will, and it is overseen by the probate court in the county where the person lived.
Probate law typically takes between six and nine months, and many individuals choose to work with a probate lawyer, which is someone who is state-licensed to advise executors and beneficiaries of an estate on how best to settle the deceased person’s affairs.
When Does Probate Start?
If there is a will, then probate officially begins when the will is filed with the probate court. Afterwards, the next of kin are notified. This is usually the surviving spouse and any children, as well as grandchildren whose parents have also died. Additionally, anyone named in the will is notified. Most will designate an individual as the executor, but if not, an executor will be appointed by the court.
If there is no will, the presumed beneficiaries will need to file with the probate court and request a specific individual to be appointed as executor. If this is the case, probate officially begins when the hearing occurs to determine an executor, whether that is an individual, a bank, or a trust company.
What are Executors and Administrators?
Executors and administrators serve the same roles. Generally, which title is used simply comes down to preference or regional norms.
These are the responsibilities of the executor or administrator:
- Collect and preserve all of the decedent’s property
- File an itemized list of the decedent’s assets, including the value of those assets at the time of death
- Create an estate inventory, which is due three months after the executor or administrator has been appointed
- Receive any payments that are due to the estate, including interest, dividends, and income
- Collect debts, claims, and notes due to the decedent
- Investigate the validity of any claims against the estate, which must be presented with six months of the date of death
- Pay all outstanding obligations
- If required, file federal and state income tax returns on the decedent’s behalf
- Prepare and file an accounting of all estate income and distribution
How Do you Administer the Estate?
If you are appointed to administer an estate, you will need to accomplish the tasks listed in the previous section. Because there are different state laws governing probate court throughout the country, the specific responsibilities of the administrator will vary from state to state. Many people choose to do this with the support of a probate lawyer, especially if they have not previously executed a will.
Important characteristics of a good estate administrator include: attention to detail, good communication, timeliness, and accurate record keeping.
How Long Does Probate Take?
In the best cases, a small estate can be settled within six months. However, some cases are more complicated than others. Complicated estates include those where real estate needs to be sold, there are disputes among the beneficiaries, litigation of some kind must be settled, or an estate tax return needs to be filed, as estate taxes are not due until nine months after the decedent’s death. In these cases, probate can take up to a year.
How Much Does Probate Cost?
Probate court costs are not extremely costly. Most of the time, they do not cost more than $350. Executors are permitted to take a fee for themselves. In Ohio, they can take 4% for the first $100,000 in assets, 3% for the next $300,000, and 2% for everything above $400,000. That said, some family members who serve as executors choose not to take this fee.
Attorney fees vary, but can generally be estimated by calculating 3-4% of the total assets. In most cases, probate attorney and fiduciary fees are paid from the estate’s assets. They are not charged until the conclusion of the probate case.
Can a will in probate be contested?
A will that is in probate can be contested, especially if there is concern that the decedent was not of sound mind when the will was made, or if he or she was manipulated by another person.
If you are considering whether or not to contest a will in the state of Ohio, you need to be able to prove one of two things: 1) that the decedent did not have “testamentary capacity,” which means that they did not fully understand and comprehend the process of making decisions about their will, or 2) that the decedent was under the “undue influence” of another individual.
Having a strong understanding of probate court is also very important if you are going to successfully contest a will, which is why it is highly recommended that challengers hire excellent legal representation.
How to Avoid Probate
The most important thing to do in order to avoid probate takes place during the will-writing process. Creating a living trust is an important step for people to consider if they want to help their family and beneficiaries avoid probate court.
A living trust is a part of your comprehensive estate plan. It allows your assets to be distributed after death in any legal manner available, completely bypassing the probate process. Essentially, a living trust is viewed as a separate entity from the person. Individuals (or married couples) can choose to place their assets directly into the trust, so that after death, the assets continue to be held by that trust.
The trust also provides specific instructions for what happens to the assets, whether they are donated to charity, distributed to family, or given to any organization or person that the trust names.
How to Hire the Best Probate Attorney for Your Situation
Your probate attorney should be experienced, extremely competent, and great at communicating with you throughout the process.
Port Legal boasts of more than 30 years experience in probate law. Whether you are administering a will or challenging one, we know how to help. Our job is to ensure that the probate proceedings are completed in a way that meets your best interests.
Contact us today for a free consultation so that we can help identify your probate needs.