Estate Planning Part 3- The Probate Process

In the event that you forgot to make an asset non-probate, and you must rely on either the will or the statute, you or your family may have to face the probate process in Ohio. This article is designed to explain what that process is for estates (when someone dies) and what to expect.

After someone dies, and if they have probate assets (all assets unless specifically made non-probate), their stuff will have to go through the probate process. When this happens, whether there is a will or not, someone will have to take the will to the probate court and fill out a number of forms in order to open the estate. If there is a will, the person to do this should be the executor. If there is no will, anybody could apply to administer the estate and be appointed as administrator.

At this point in time, all of the people with an interest in the estate will be notified that the application for appointment has been filed. Provided that all of the people with an interest in the estate sign a waiver form, the applicant will most likely be approved by the court and a ghost hearing will be set where the court approves the applicant. If there is a will, the people with an interest in the estate will also be asked to sign a waiver to contest the will. As long as they all agree that this was the dead person’s last wishes and the dead person was competent when they signed the will, the court will most likely approve the will. If someone disagrees with the applicant, or disagrees with the will, a hearing will be set on those issues.

Once an administrator/executor is appointed and/or the will is accepted by the court, the next phase of an estate is the inventory. The administrator/executor will have to list all of the important assets that need to be handled in the estate. This list will be given to all of the beneficiaries (if no will, the beneficiaries are determined by the statute of decent and distribution, otherwise they are laid out in the will). If the beneficiaries agree that all of the things the dead person owned are listed, then they have the option to waive again- this is just a waiver to contest the inventory. If they disagree, another hearing will be set.

After the inventory, the assets will either be divided up amongst the beneficiaries according to the statute or the will, or the assets may have to be liquidated. Creditors will be given the opportunity to attack the estate and if they file their claim timely, they will have to be paid before the beneficiaries are able to obtain their portion. Assets will have to be liquidated to fulfill the creditor’s claims. Once a plan is created for dividing the assets, liquidation, payment of creditors, and distribution to the beneficiaries, the administrator/executor will report this to the court in the final phase: the final accounting. Again, the beneficiaries will have an opportunity to either waive (meaning they agree with the plan) or be heard at a hearing.

Eventually, a final accounting will be accepted by the court and the estate will come to a close. Generally this process can take between 3 months to 4 years (typically, though, estates should close within 9 months) and become very costly in expenses of the administration, which is why it is important to plan your estate and make your assets non-probate.

-Attorney Michael Wagner