Q1. What is probate court?
A1. Each county has a probate court that is part of the common pleas court. The probate court is generally charged with overseeing the administration of estates upon the death of an individual who dies a resident of the state. Probate courts also issue marriage licenses and have jurisdiction over adoptions, name changes, competency hearings and involuntary civil mental health commitments. Along with county and municipal court judges, a probate judge may perform marriages.
Q2. Why is probate necessary?
A2. Probate is necessary to protect the assets of the decedent for the beneficiaries, heirs, creditors and other persons due money from the estate, and to ensure the collection of money due to the estate. Probate provides for payment of outstanding debts, taxes and the expenses of administration and for the distribution of the remainder of the estate to the beneficiaries and heirs.
Q3. How much does probate cost?
A3. The costs assessed by the probate court are based on a schedule of charges established by law for each type of document filed in the court. Attorney fees charged for handling matters of the estate must be approved by the court and are based on the actual services performed by the attorney.
Q4. How long does probate take?
A4. A small estate that does not require the filing of an Ohio estate tax return will be settled within six months of the appointment of the executor or administrator. However, if an Ohio or a federal estate tax return is required, the administration of the estate can last more than a year. (Estate taxes are not due until nine months after the decedent's death.) If there is an audit of a federal estate tax return, the administration often takes another year, and an executor or administrator cannot safely distribute all of the estate assets until released from personal liability for estate taxes. An extraordinary case involving a contested will or complicated tax litigation may take three years or more. Claims against the estate may be made up to six months from the date of death.
Q5. What does probate involve?
A5. Probating an estate requires the appointment of a person to conduct the administration of the estate. If there is a will, this person is usually named in the will and is called an executor. If there is no will, this person is appointed by the probate court and is called an administrator. The executor or administrator may be an individual, a bank or a trust company.
The executor or administrator takes care of the following tasks:
· caring for all property of the decedent;
· receiving payments due the estate, including interest, dividends and other income;
· collecting debts, claims and notes due the decedent;
· determining the names, ages, addresses and degree of relationship of all heirs;
· determining the names, ages and addresses of all beneficiaries, if there is a will;
· investigating the validity of all claims against the estate and paying all outstanding obligations including federal, state and local estate and income taxes;
· planning for federal and state taxes and preparing and filing estate tax returns when required;
· carrying out the instructions of the probate court pertaining to the estate and distributing the assets of the estate to the heirs.
The probate court judge supervises the work of the executor or administrator. These actions require the preparation and filing of numerous legal documents, the provision of notices, hearings in court, an appraisal of the assets of the estate, an inventory of the assets, completion of final income tax returns and possibly gift and estate tax returns, an accounting of funds, final transfer of all assets to beneficiaries, termination of the probate proceeding, and discharge of the executor or administrator by the probate court. Because of the complexity of these procedures, the assistance of an attorney usually is needed.
If the total value of all property in the decedent's individual name is $35,000 or less, the estate can be relieved from some of these administrative requirements. Where the decedent's spouse is entitled to receive all of the estate's assets, the amount that can be relieved from formal administration is increased to $100,000. In estates with a value in excess of $338,333, an Ohio estate tax return must be prepared and filed. A federal estate tax return may have to be filed depending on the total value of all assets of the decedent.