Whether you’re creating your own estate plan, or you’ve suddenly become the executor or administrator of an estate, working with a probate attorney can simplify the process.
Here are some of the most common questions clients ask:
What is probate?
Probate is the court-supervised process of distributing assets and addressing creditor claims. Assets that are owned solely in the decedent’s name and do not have beneficiaries will need to go through the probate process. This includes situations where the beneficiary predeceases the testator/deceased.
What’s the difference between executor and administrator?
If someone dies with a will, they name an executor—the person responsible for handling their estate after death. If someone dies without a will, the probate court will appoint someone as the administrator. There are more restrictions on an administrator so a will is usually advised.
Someone named me as their executor, but I don’t want to do it. Do I have to?
If you don’t feel comfortable being the executor, you can decline the responsibility. The probate court cannot force you to take it on. If the deceased named a backup executor in their will, that person will be eligible to serve. If no one is willing to serve, the court will appoint someone to handle the process.
What happens during probate?
The executor/administrator gathers probate assets, pays legally valid debts of the estate and rejects claims that are not legally valid.. They’re also responsible for determining the value of the assets, which may require outside assistance. Once all debts and fees are paid, the distribution to beneficiaries is made. The entire process usually takes at least six months and often longer.
Can I avoid probate?
Yes, there are certain situations in which probate is not necessary. Often, when an estate is small, the executor or administrator can apply for a Release From Administration.
There are other ways to avoid probate—at least partially. Property held in trust does not need to be probated, nor do assets passed through survivorship deeds, transfers upon death and other legal structures.
If you’d prefer to avoid probate, it’s important to work with an estate planning attorney. We can help you make a plan to eliminate or simplify the probate process as much as possible.
Do I need an attorney to go through probate?
No—but it’s highly recommended. Probate can be a complex and unwieldy process. There are many responsibilities and obligations associated with probate, including filing taxes, dealing with claims against the estate, distributing assets, etc.
A lawyer can help you through the process. Many clients are worried “they don’t know what they don’t know,” especially when they’ve never served as executor before. Whether you need consultation or more in-depth services, working with a lawyer will ensure the role is fulfilled properly.
What property is included in a probate estate?
The answer to this question depends on a lot of factors. It depends on what estate planning had been done prior to the decedent's death, how the assets are owned, does the asset pass by trust, contract, etc. It is often difficult to determine what is probate property without the assistance of an attorney.
What does it mean to probate an estate in Ohio?
When a person dies their assets must be distributed whether they have a will or not. The process to achieve this is called probate. In order for a person's will to considered valid by the court, it must go through the procedure of probate. If there is no will, the court will appoint someone to be the administrator of the estate and the assets will pass according to Ohio state statutes.
What types of claims can be made?
If a person made a purchase but had not fully paid the amount due before he died, this would be a claim against the estate. Or someone may claim that the decedent wanted to bequeath property to him. Funeral and burial expenses may also be claims against the estate. Certain taxes, debts, and contract or tort claims can also occur as claims against the estate.
What is a claim against the estate?
A claim against the estate is a claim made by someone against a decedent's estate for money or property they believe is due to them. These claims can occur before, at or after the death of a decedent. Claims can very quickly become involved and intricate. It is important to have an experienced Ohio probate attorney work with you to probate your estate.
Call us today for probate assistance
James Bart Leonardi, LLC is on hand to help you through the probate process. Our team is experienced in handling estates of all sizes, from simple to complex. Call us today to learn more about how we can help.