Estate and Probate Attorney in Cincinnati Ohio » probate court

Spouse’s right to elect against the Will

admin — Tue, 29 Mar 2011 08:50:03 +0000

A surviving spouse has a right to elect against the will and to take the share he or she would have been entitled to if there was no will. If for example, the will left the estate to a trust and excluded the spouse, the spouse could take one third of the net probate estate if the decedent had two of more children. The Probate Court issues a citation to the surviving spouse when the will leaves the spouse less than the testamentary share. The spouse has five months after the appointment of the executor to make the election.

What is an accounting?

admin — Tue, 29 Mar 2011 08:48:20 +0000

Once all of the bills have been paid and all of the assets have been sold or distributed, the executor/administrator has to prepare and file with the Probate Court a final account. This shows the Court all of the assets that have come into and gone out of the estate. The executor must bring all cancelled checks and receipts as well as closing statements from the sale of real estate. The Probate Court verifies that the estate has been properly distributed. The first accounting is due in nine months. Subsequent annual accounts are due until the final account is filed and the Court close the estate and discharges the executor/administrator.

Filing of the Inventory

admin — Tue, 29 Mar 2011 08:44:48 +0000

The executor/administrator must file with Probate Court an inventory of the estate assets. The inventory is due within three months of being appointed. The Court can extend the time for filing of the inventory. This is a detailed list of...
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Powers and duties of the Executor/Administrator

admin — Tue, 29 Mar 2011 08:40:15 +0000

An executor or administrator of an estate is the person who is responsible for the administration of the estate. They must identify and evaluate the assets. They must identify and pay all bills. They are responsible for selling the assets that need to be sold and all tax filings for the decedant and the estate. Finally, the executor distributes the assets in accordance with the terms of the will or state law if there is no will.

The executor/administrator also agrees to:

Give notice of the admission of the will to the heirs and beneficiaries
Make and file an inventory with the Probate Court
Deposit all funds in an estate account and to keep all records
Keep estate funds separate
Invest all funds in a lawful manner
Make and file a distributive and final account with the Probate Court
File all tax documents required by law
Maintain insurance on the estate assets
Obey all Court orders

Who can serve as Administrator and Guardian if no Will

admin — Tue, 29 Mar 2011 08:36:53 +0000

The Probate Court would select the administrator of your estate and guardian’s for any of your minor children. Somebody from your family or otherwise would apply to be appointed the administrator of your estate. The Probate Court would have a hearing to determine the worthiness and capabilities of the applicant. If all of the heirs consent to the appointment, then a hearing is not needed. If two or more people apply, then the Probate Court will have a hearing to determine which administrator is more capable.

The administrator must be from the State of Ohio.

This basic process is the same for the selection of the guardians for the minor children. A guardian must be a resident of the State of Ohio and also a resident of the county where the ward resides. There are four exceptions to this rule:

The guardian is named in the will
The guardian is selected by a minor who is over age 14
The guardian is named in a power of attorney

How is an Estate opened if there is no Will

admin — Tue, 29 Mar 2011 08:36:07 +0000

Someone files an application to open an estate without a will and to be appointed as the administrator of the estate. This is typically a spouse, child, or other family member. In some cases it is an attorney applying to be the administrator of an estate.

The matter is set for a hearing. Everyone who is an heir at law would receive notice by certified mail or waives notice. For example, if a dad died, the heirs at law would be all of his natural and adopted children.

If all of the heirs consent to the appointment of the administrator, then the hearing is not necessary and the Court will appoint that person. The Court will conduct a hearing to determine the suitability of the applicant to serve as administrator or pick one if two or more apply to serve as the administrator.

If you would like a free consultation, contact us with questions.

Appointment of Executor

admin — Tue, 29 Mar 2011 08:35:31 +0000

At the same time as the will is admitted to Probate Court, the executor who is listed in the will is appointed as the executor. Many lawyers have abandoned the gender specific terms of executor applying to a male and an executrix applying to a female. It is now common to just call him or her an executor.

The Probate Court issues the executor “Letters of Authority”. This is an official Court order certified by Probate Court that the person named is the executor of the estate. The executor uses this Letter of Authority to transact business on behalf of the estate. The executor can close bank accounts, sell assets, pay bills, and do all things necessary to administer the estate in accordance with the terms of the will.

Filing of the Will

admin — Tue, 29 Mar 2011 08:34:17 +0000

The first step to open probate is to file the will. There is a presumption that the will is valid. A list of all of the people named in the will and a list of all of the people who would inherit under Ohio Law if the will was contested and found not to be invalid is also filed with the will. These people have an interest or standing in proving that the will is valid or not depending on which side the heir or potential heir might be on.

To be valid, the will must be:

in writing
testator must be at least 18 years old
testator must be of sound mind and not coerced
signed at the end by the testator
two witnesses must attest the will

As an example, I am a child of the decedent and have been excluded from my dad’s will. I file a will contest, because I believe my dad was not competent at the time he signed his will. If I am successful and the will is thrown out by the Court, then I inherit a share of his estate as an heir at law.

What Assets Go Through Probate?

admin — Tue, 29 Mar 2011 08:32:58 +0000

Whether an estate goes through probate or not, depends on how the decedent held assets and what types of assets were owned at the time of death. Certain assets have to go through probate, other assets do not.

The following is a list of assets that typically avoids probate:

Jointly held property with rights of survivorship
Life insurance and annuities with a named beneficiary
Retirement plans, IRAs, and pensions with a named beneficiary
Assets held in a Living Trust at the time of a decedent’s death
Payable on Death (POD) bank accounts
Transfer on Death (TOD) affidavits for real estate
Transfer on Death (TOD) stocks, bonds, and brokerage accounts
Transfer on Death (TOD) automobile titles

All other assets that are titled in the decedent’s individual name alone or where no beneficiary is named must go through probate.

Is Probate Necessary?

admin — Tue, 29 Mar 2011 08:31:24 +0000

If there are assets in the name of the decedent alone, probate is necessary to re-title those assets. Any assets payable to an estate must go through probate. For example, you name your estate as the beneficiary of a life insurance policy or the named beneficiary died before you and there is no second beneficiary listed, you must open probate to collect the life insurance. If there is litigation on behalf of the deceased, then a Probate estate will need to be opened. The executor or administrator has the power to bring an action on the estates behalf.

There are three levels of probate. They are based on the dollar value of the assets that are going through probate. The three levels are as follows.

Summary Release – The estate can be paid to the person who paid the funeral bill as long as the estate is less than $5,000 or the cost of the funeral, whichever is less. Thus, if the bank account is $3,500 and the funeral bill is $1,500, then you have to do a Relief from Administration. If there is a surviving spouse, a Summary Relief may be granted for an estate not exceeding $40,000 plus $5,000 for the funeral bill.

Relief From Administration – You can apply to have the estate relieved from administration if the probate assets are less than $35,000 payable to a non-spouse and $100,000 payable to a spouse. You file an Application for Relief From Administration and the court will issue an order allowing the relief and appointing someone as commissioner to collect the assets. This is considered a small estate procedure.

Full Administration – All other estates must do a full administration which includes appointment of the executor/administrator, filing of the inventory, waiting for the will contest period and creditor claim period to expire, and the filing of an account with the court.