Probate
Whether you have a large estate or a small estate, estate planning is essential to make sure your property passes at your death in accordance with your wishes. Estate planning is not an easy thing to discuss, but it can save you from paying unnecessary estate taxes and court costs.
What is probate?
Probate is the legal process in which the decedent’s property is inventoried, valued and dispersed in accordance with their last will and testament or the Ohio Statute of Decent and Distribution (O.R.C. 2105.06). The probate process takes place in the probate court of the county where the deceased property owner resided at the time of his death.
What does probate involve?
Probating an estate requires the appointment of a person to conduct the administration of the estate. If the decedent left a will, the person named tin it can apply to be appointed the Executor of the estate. If the decedent left no will, a person may apply to be appointed the Administrator of the estate by the probate court.
The Executor or Administrator takes care of the following tasks:
To care for all property of the decedent;
Receiving payments due the estate, including interest, dividends and other income;
Collect claims, debts and notes due to the decedent;
Determine the names, ages, addresses and degree of relationship of all heirs;
Determine the names, ages, and addresses of all beneficiaries, if there is a will;
Investigate the validity of all claims against the estate and pay all outstanding obligations including federal, state and local estate and income taxes;
Plan for federal and state estate taxes and preparing and filing estate tax returns when required;
Carry out the instruction of the probate court pertaining to the estate and distributing the assets of the estate to the heirs.
Rights of Surviving Spouse
A surviving spouse has certain rights under Chapter 2106 of the Ohio Revised Code which must be exercised within a certain time limit. For a Summary of those rights click here (this is listed at end of this section).
How much does probate cost?
All court costs must be approved by the court. In some counties attorney fees are calculated based upon the court’s standard fee schedule. In other counties, Attorneys keep track on their time and charge on an hourly basis.
Last Will and Testament
Do I need a will?
A will sets forth the way you would like your estate to pass at your death. In a will a person is also named Executor for the purpose of administering your estate. If you have minor children, you should consider naming a guardian in your will and/or consider doing a testamentary trust. A testamentary trust is a trust that is created at your death and is administered by the Trustee named in the will in accordance with the terms trust.
If you do not prepare a will, your estate will be distributed according the Ohio Statute of Descent and Distribution. In addition, the probate court will appoint an Administrator to administer your estate.
Living Trusts
What is a living trust?
A living trust is an entity that is created during the persons life by funding it with assets that they own. The written trust agreement names a trustee and sets forth other terms for the trustee to follow to administer the trust. A living trust can be funded with bank accounts, stocks and bonds, a home and other assets.
What is the purpose of a living trust?
A living trust has many purposes. One purpose is to avoid the probate process which can be costly and make your assets public. Trusts can also be used to for estate tax planning purposes and to restrict the disposition of your assets after your death. For example if the person making the trust has young children, or children that are spendthrifts, they can put a provision in the trust that says “Jimmy shall receive 1/2 of his share at age 30 and the other 1/2 at age 40.”
Advance Directives (Living Wills and POA)
What are Advanced Directives?
Advance Directives consist of a Living Will and Healthcare Power of Attorney. A Living Will allows you to appoint an agent to make decisions if you are in a terminal condition or permanently unconscious state with respect to life sustaining treatment, resuscitation orders, and other medical decisions. A Healthcare Power of Attorney enables you to appoint an agent to make healthcare decisions on your behalf if you are unable to make them.
Rights of Surviving Spouse
What are Advanced Directives?
This is a summary of your general rights as surviving spouse under Chapter 2106 of the Revised Code. Many of these rights have specific time limits in which they must be exercised. If you have questions concerning your rights, you should discuss them with an attorney of your choice. The Court cannot advise you.
1. Election to Take Under or Against the Will (R.C. 2106.01 – 2106.08)
If you elect to take against the Will, you are entitled to one-half of the decedent’s net estate, unless there are two or more of the decedent’s children or their lineal descendants surviving, in which case you are entitled to one-third of the decedent’s net estate. You will not be entitled to receive any assets given to you under the Will.
If you elect to take under the Will, you will receive those assets given to you under the Will.
Whichever choice you make, (unless you elect to take under the Will and the Will specifically precludes you from exercising these rights), you will not be barred from your rights to purchase certain assets at the appraised value, to remain in the mansion house (the residence) for one year, to receive an allowance for support, to receive not more than two automobiles and one watercraft and one outboard motor owned by the decedent, and to such other rights as a surviving spouse may be entitled under law.
Although your election may not affect certain non-probate property, such as joint and survivorship, payable on death, and transfer on death property, it may have an effect on other types of non-probate property, including property held in trust.
Before making your election, you are entitled to file a complaint in this Court asking that the Will be construed.
If you elect to take under the Will, you may do so in writing if you wish, but you may also do so by taking no action.
If you elect to take against the Will, you must do so in person before the Probate Judge or a Magistrate. This election must be exercised within five months from the date of the initial appointment of the administrator or executor of the estate or it is forfeited.
2. Rights to Receive Mansion House (R.C. 2106.10)
Depending upon the value of the real estate, you may have the right to receive the mansion house (the residence) as part of your inheritance.
3. Right to Place Charge on Real Estate (R.C. 2106.11)
If there is no will and there are insufficient assets to pay the specific monetary amount due to the surviving spouse pursuant to R.C. 2106.05, you have the right to place a charge (lien) on any real property included in the probate estate in the amount of the unpaid portion of the specific monetary share.
4. Allowance for Support (R.C. 2106.13)
You may be entitled to an allowance for support. For deaths occurring after March 18, 1999, the amount is $40,000 of probate assets. If there are one or more minor children of the decedent, not the children of the surviving spouse, this Court will apportion the allowance among those children and the surviving spouse.
5. Right to Remain in the Mansion House (R.C. 2106.15)
You have the right to remain in the mansion house (the residence), if it is probate asset, for a period of one year from the date of death without the payment of rent to the estate. If the mansion house is sold to pay debts during this period of time, you may be entitled to the fair rental value of the mansion house. This election must be exercised within five months from the initial appointment of the administrator or executor or the right is forfeited.
6. Right to Purchase Property (R.C. 2106.16)
You have the right to purchase assets of the probate estate at the appraised values. The application or petition to purchase the assets must be filed within one month of the approval of the inventory or the right is forfeited.
7. Right to Automobiles (R.C. 2106.18)
You may be entitled to receive up to two automobiles, not specifically bequeathed, that would otherwise be included in the probate estate and do not exceed an aggregate value of $40,000. This right may affect the amount you may receive under the Allowance for Support. This right must be exercised within five months from the initial appointment of the administrator or executor or the right is forfeited.
8. Right to Watercraft and Outboard Motor (R.C. 2106.19)
You may be entitled to receive one watercraft and one outboard motor, not specifically bequeathed, that would otherwise be included in the probate estate. This right must be exercised within five months from the initial appointment of the administrator or executor or the right is forfeited.
9. Right to Reimbursement of Funeral Bill (R.C. 2106.20)
You may be entitled to be reimbursed for the payment of the funeral bill.
10. Right to Challenge Antenuptial or Separation Agreement (R.C. 2106.22)
You are entitled to file an action to contest the validity of an antenuptial or separation agreement. This action must be filed within four months of the appointment of the executor or administrator or the right is forfeited.
This is a summary of your general rights. There may be additional rights to which you are entitled.
Ohio Revised Code § 2106.25 states:
Unless otherwise specified by a provision of the Revised Code or this section, a surviving spouse shall exercise all rights under Chapter 2106. of the Revised Code within five months of the initial appointment of an executor or administrator of the estate. It is conclusively presumed that a surviving spouse has waived any right not exercised within that five-month period or within any longer period of time allowed by the court pursuant to this section. Upon the filing of a motion to extend the time for exercising a right under Chapter 2106. of the Revised Code and for good cause shown, the court may allow further time for exercising the right that is the subject of the motion.
