Probate is a court-supervised legal process that may be required after someone dies. Its purpose is to make sure the deceased person’s debts and taxes are paid and that assets are transferred to the people who are entitled to inherit them.
Will a Probate Proceeding Be Necessary?
Generally, only assets that the deceased person owned in his or her name alone go through probate. Everything else can probably be transferred to its new owner without probate court approval.
Many common assets do not need to go through probate. Examples include:
- assets held in trust (for example, a revocable living trust designed to avoid probate)
- assets owned in “survivorship tenancy” or “joint and survivorship” form, which pass automatically to the surviving owner
- assets held by a married couple in tenancy by the entirety (available only if the tenancy by the entirety was created before April 4, 1985)
- assets subject to a beneficiary designation (for example, retirement accounts for which a beneficiary has been named, or payable-on-death bank accounts)
- proceeds of an insurance policy that are payable to a named beneficiary
- real estate subject to an Ohio transfer-on-death “designation affidavit” (deed)
Simplified Probate for Small Estates: “Release From Administration”
A simplified and less expensive probate process is available in either of these situations:
- The surviving spouse inherits all probate property (either under the deceased spouse’s will or if there is no will, by state law) and the value of the estate is no more than $100,000; or
- The estate’s value is $35,000 or less.
The simplified process should take only two to four months. The probate court will then order the estate assets distributed to the people who inherit them.
No Probate for Very Small Estates: “Summary Release From Administration”
No probate at all is necessary if the estate is worth less than $5,000 or the amount of the funeral expenses. In that case, anyone (except the surviving spouse) who has paid or is obligated to pay those expenses may ask the court for a summary release from administration.
Alternatively, the surviving spouse may ask for summary release from administration if:
- the surviving spouse inherits everything and is entitled by law to a family support allowance
- all of the deceased spouse’s assets are worth no more than $45,000,
- and the surviving spouse has already paid the funeral costs or is obligated to pay them.
Who Is Responsible for Conducting a Probate Proceeding?
The person named to serve as executor in the deceased person’s will generally takes charge of the estate. If there is no will, or the person named in the will isn’t available or willing to serve, the probate court will appoint someone to serve an administrator. The surviving spouse, if any, has first priority to be appointed as administrator.
Once the court issues a document called “Letters of Authority,” the executor or administrator must:
- prove in court that a deceased person's will is valid (usually a routine matter)
- gather, inventory, and safeguard the deceased person's assets
- have those assets appraised
- pay debts and taxes, and
- distribute the remaining property as the will (or if there's no will, state law) directs.
The executor must keep careful records of how estate assets are handled and distributed.
Formal probate can be expensive; that’s why so many people take steps to avoid it. In Ohio, costs commonly include:
- court costs (usually between $200 and $250)
- executor or administrator’s fee, based on a percentage of the value of the probate estate (though family members commonly don’t accept compensation for their work, in part because it’s taxable income)
- attorney fees (these fees can be negotiated between the executor and the lawyer; some counties also publish fee schedules, but these are not mandatory)
- appraisal fees (when necessary to determine the value of estate assets).
If the estate is large enough, it may also owe federal estate tax, but this tax will be due whether or not there is a probate court proceeding. The Ohio estate tax was repealed effective January 1, 2013.
How Long Does Formal Probate Take?
Most straightforward probate cases can be wrapped up within about nine months after the executor or administrator is appointed. Creditors have six months to file a claim, so probate must last at least that long. If the estate owes state or federal estate tax, it’s likely to take a year or more.
The case will also be delayed if someone files a will contest, alleging that the deceased person wasn’t of sound mind or was unduly influenced when he or she signed the will. The contest must be filed within four months after interested persons are notified of the probate. Will contests, however, are rare.