- What is Probate?
“Probate” is the legal process through which a deceased person’s assets (such as bank accounts, vehicles, real property, and investments) are transferred to others. County Probate Courts oversee the process. When a person makes a Will, it controls how his or her assets will be transferred. If a person dies without a Will, the probate law in Ohio will control how the assets will be divided. If there are no living family members, the assets go to the state.
The Probate Court appoints an executor or administrator for each estate, and that person is responsible for managing the estate. The executor or administrator will determine what assets the deceased person owned, pay any bills the person owes, and then distribute the remaining assets. These are called “probate assets.” Certain kinds of assets don’t have to go through probate. Any asset that goes directly to another person following someone’s death without having to go through the probate process is called a “non-probate asset.”
- How long does it take for my family to get their money through Probate?
Even when the gross value of the estate (probate assets and certain non-probate assets) is small, the probate process can take a long time. During that time, the family of the deceased person must wait for the distribution of the person’s assets, even though life goes on and bills pile up. The process itself can also be costly. The executor or administrator is entitled to a percentage of the estate’s assets for the work he or she does and there will also be attorney fees paid from the estate. That’s money that won’t go to the person’s family members. There are nine basic steps to probating an estate:
- Filing of an application for authority to administer the estate, admit the will to probate, if one exists, and notification of probate
- Appointment of fiduciary
- Gathering assets and obtaining appraisals as required
- Filing an inventory and schedule of assets
- Paying creditors
- Filing estate and income tax returns and paying taxes, if any (as of January 1, 2013 Ohio no longer has a separate estate tax)
- Distributing remaining assets to beneficiaries
- Filing accounts
- Closing the estate
It can take months or years to complete these steps depending on the case. But, if the gross value of the estate is small enough, Ohio law allows you to file a summary release from administration or to apply to relieve the estate from administration to expedite the process.
- Why might I want to limit probate?
That’s easy. You want to limit or avoid probate because (1) it can take a long time to administer even simple estates, and (2) it can take money from your savings and other assets – money that would otherwise go directly to your family. It’s also worrying for your family—the very people you have always worked so hard to protect and preserve from worry. By investing some time and money to set up these automatic transfers, spouses, parents and grandparents can help their family members avoid or limit probate after they pass away.
- My family doesn’t have a lot of money and “estate planning” sounds expensive. Why do I need to have an estate plan?
Good question. Estate planning isn’t just for the rich. If you own a home, a car, or have bank accounts, estate planning allows you to protect and pass more of your assets along to your family. In fact, families with modest incomes and property can benefit as much from estate planning as wealthier families by preserving as many resources as possible for their loved ones.
It comes down to this: Wouldn’t you rather spend a relatively small amount of time and money now to make sure that your family worries as little as possible, and receives as much of your money as possible, after your death? Estate planning allows you to do that.
- What if I’m sick for a while before I die and can’t make decisions for myself? Can estate planning help with that?
Absolutely. You can act now to select family members, friends, or other trusted individuals to assist you if and when you can’t make decisions for yourself. You can prepare a durable power of attorney for health care and a living will to establish the kind of medical care you want. You can also set up a legal power of attorney so that someone else can pay your bills and manage your financial affairs while you are ill. Again, by making those decisions now, you will give your family members the ability to make decisions for you when you can’t without having get a court-appointed guardian.
- How Can I Avoid or Limit Probate?
As I mentioned above, some of your assets won’t have to go through the probate process if you take steps now to make sure that they will transfer directly to another person when you die. For example, you can:
- Make sure that your home or other real estate transfers to another person by preparing a particular kind of deed
- Put most or all of your assets in a “living trust,” which allows you to use and enjoy the assets during your life, but transfers them to your loved ones after your death
- Ensure that your retirement and other investment income will automatically be paid to your spouse, children, or charity
But it’s not enough to simply leave a letter or even a Will saying you want these things to happen. You will need to adhere to the legal processes that Ohio law establishes in order for these transfers to occur automatically. My office can help you make sure you do it according to the law.
- One of my children has special needs and receives Medicaid. I’ve been told that I can’t leave any money to her in my will without affecting her Medicaid eligibility, and that scares me. What can I do to make sure she will be have enough money after I have died?
That is worrying. But there are steps you can take to help provide for your child with special needs after your death. You can establish a specific trust for her that won’t affect her ability to continue receiving Medicaid benefits. I can help you with that.
- What happens when I meet with you?
We will spend some time talking about what you have and what you want to do with it. Once we have had that conversation, I can tell you what steps would help you prepare for your family. I can also tell you what it will cost to make those preparations. Think of me as a personal trainer for your estate: my job is to help you reach the estate goals you set for yourself.
- What is my next step?
If you’re ready to discuss an estate plan or your relative has passed away, call my office at (614) 838-1188 or use this contact form to reach me. When we set up the appointment, my office will tell you what you need to bring to our first meeting in order to get you started.