Ohio Probate: An Overview

Probate in Ohio 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 an Ohio Probate Proceeding Be Necessary?

You might be surprised to find that many common assets actually do not need to go through probate. Examples of assets that you can transfer outside of probate 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 between 1972 and 1984)
• 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" (also called a "transfer on death deed").

Other types of property will likely need to go through probate. However, small estates might qualify for certain probate shortcuts (see below).

Simplified Probate for Small Estates: "Release From Administration"

A simplified and less expensive probate process is available in either of these situations:

• The estate's value is $35,000 or less, or
• 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

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. Ohio Rev. Code Ann. § 2113.03

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, whichever is less. 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.

Ohio Rev. Code Ann. § 2113.031

The Probate Process in Ohio

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 as an "administrator," which is essentially the same role as an executor. The surviving spouse, if any, has first priority to be appointed as administrator.

The court issues a document called "Letters of Authority" that gives the executor or administrator the authority to manage the estate. The executor or administrator then does the following:

• 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 the deceased person's debts and taxes (from estate funds), 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. (Read more about The Executor's Job.)

Costs of Probate in Ohio

Formal probate can be expensive; that's why so many people take steps to avoid probate. In Ohio, costs commonly include:

• court costs (usually a few hundred dollars)
• an executor or administrator's fee, based on a percentage of the value of the probate estate (however, family members often don't accept compensation for their work, in part because they will inherit under the money anyway)
• 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. Ohio used to have an estate tax, but it was repealed in 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 signing the will. The contest must be filed within three months after interested persons are notified of the probate. Will contests, however, are rare.

If you're beginning a formal probate proceeding or have questions about Ohio probate laws, contact an Ohio probate attorney for additional guidance.