(440) 530-9166Avon Probate Attorneys
What is Probate?
It is the process by which a personal representative becomes authorized to transfer a deceased person’s assets to designated beneficiaries or legal heirs.
The loss of a loved one is a difficult time for everyone involved. Then the word comes from a bank or other official that you cannot have your loved one’s asset because it must go through Probate. After you get over the initial aggravation and anxiety, you must now deal with the prospect of being appointed by the probate court to handle and close the affairs of your loved one, making all the decisions that need to be made. This is coupled with the reality of being pulled in different directions by everyone from the funeral director, other family members, a mortgage company, and creditors – just to name a few. Navigating this process through the court system can be quite intimidating.
Probate is simply the process by which a personal representative (executor or administrator) becomes authorized to transfer a deceased person’s assets to designated beneficiaries or legal heirs. Those beneficiaries are determined by the deceased through a last Will and Testament or, if there is no Will and Testament, by Ohio’s law of descent and distribution. If you are simply a beneficiary, your role is significantly different. If your loved one’s last Will and Testament selected you to be an executor or if you have priority to be one, the information that follows is all the more important.
What are Probate and Non-Probate Assets?
It is important to understand that not all assets are subject to Probate. Additionally, depending on the value of the assets, a full probate administration may not be necessary. Prior to beginning the probate process in court, it will be necessary to make an initial inventory of assets, determine the actual ownership of the assets, and estimate the value. By looking at the ownership of assets and whether a beneficiary designation exists, you will be able to decide if Probate is necessary. If the asset is owned in the deceased’s individual name, and there is no beneficiary designation, then it likely requires Probate. However, certain exceptions exist. For example, a surviving spouse can receive up to $65,000 in automobiles titled to the deceased spouse outside of the probate process.
Can You Do This Alone?
The short answer is… maybe. Being appointed to serve as the executor or administrator of a loved one’s estate is an important job with defined legal responsibilities. Most people will never have this responsibility, and as a result, very few people understand the various tasks required by the role. It is often a thankless job. The beneficiaries have an expectation of a monetary or property distribution but do not understand what steps the law requires to fully complete the administration of an estate.
In short, the probate process is not as quick or easy as everyone would like. The best-case scenario in a full administration is approximately six months. Often, the sale of assets makes the timeline longer, and if the assets are not easily located, the process can take longer. If you are the executor, you will also need to manage the payment of any debt claims or taxes owed by the deceased. If you are diligent, well-organized, and patient, you might be able to handle probate on your own. However, our experience is that most people greatly benefit from the assistance of a probate lawyer to help guide them through all the required tasks.
When enlisting the services of a probate lawyer to assist with executing a will, the attorney will help with more than simply explaining the will. Sometimes, assets can’t be located, and they will give you the tools you need to find them. They can locate family members who are beneficiaries of the will. An experienced attorney will also work with the executor to settle any claims against the estate.
What Should You Look Out For?
It must be clearly understood when you are appointed by the probate court to be an executor or administrator, you are legally obligated to fulfill the directions of the deceased person, follow the law, and follow the court’s requirements. You stand in a fiduciary relationship with the beneficiaries. This is a high level of duty that requires you to act with integrity primarily for the benefit of the beneficiaries. You must know and determine which of your loved one’s bills must get paid and which bills you absolutely should not pay. The personal feelings and desires of the executor are not the guide to administering the estate.
Courts in Ohio have stated it this way:
Under R.C. 2109.01, an executor of an estate is a “fiduciary.” The fiduciary duties of an executor are primarily to collect the estate assets, pay debts, and make distributions. The executor also owes various duties to the beneficiaries of the estate, including keeping proper accounts, giving timely notice, preserving assets, avoiding the commingling of property, and basic duties of trust and loyalty. The executor serves as a representative of the entire estate and owes a duty to act in a manner that protects the beneficiaries’ interests.
Finally, be suspicious of anyone (professional or layperson) who advises you that Probate is not necessary. It is always best to seek the advice of an experienced probate attorney prior to making decisions.
Avoiding Conflict During Probate
Proper estate planning is one of the best ways to avoid conflict during Probate. When you create a will or trust, you are creating a roadmap your family can use to execute your final wishes. Families need time to mourn when they lose a loved one, and thorough estate planning can allow them to concentrate on their love for you rather than the legalities of your will. The last thing you want for your family is for them to end up in a dispute over a misunderstanding in your estate.
Can You Avoid Probate All Together?
Probate court is often spoken about in derogatory terms. People who deal with probate court often do so after the loss of a loved one. Probate is also a very public proceeding, making it difficult to maintain privacy.
Whether the decedent has a will or not, their beneficiaries will likely have to deal with Probate. Having a will makes probate administration a far easier task because the court will do its best to distribute the decedent’s assets according to their final wishes.
If the decedent doesn’t have a will, the court will force the assets to be distributed fairly by following the law of “intestate succession”, favoring children and spouses, and moving to the extended family if the decedent didn’t have any immediate relatives.
One of the few ways you can avoid Probate when planning ahead is to create a trust. Trusts allow you to deposit assets into them and assign someone to manage them. The distribution of the assets in the trust is outlined when the trust is created. A trust will remain private, even during the probate process. This is a great way to alleviate some of the stress on your family in the future.
Please call us at 440-530-9166. Take the first step with probate and schedule your free consultation, or visit our office and meet the team.