Probate and Wills

Probate & Wills in Ohio- An Overview

What is Probate?

Under the laws of Ohio, probate is the legal process through which the property or assets of a deceased person are dealt with. It involves the determination, valuation and distribution of the estate of a deceased. Estate includes both real property such as home, land or anything affixed to the ground and personal property such as valuables, car or family heirlooms. Regardless of whether the person dies with or without leaving a valid will, probate laws govern the process of dealing with the estate of a deceased.

When a person dies leaving behind a valid will, then the person is termed as testate. On the other hand, when a person dies without leaving behind a will, then the person is termed as an intestate.

What is a Will?

A will is a legal document which describes how the estate of a person after he dies will be distributed and dealt with. It is formally known as ‘last will and testament’.

Essentials of a valid will: Under the laws of Ohio, in order for a will to be valid, it must meet the following requirements:

  1. It must be in writing.
  2. The testator (the person whose will is being made) must be atleast 18 years of age.
  3. It must be declared by the testator that the will is intended to be his or her last will.
  4. It must be witnessed by atleast two people who are not beneficiaries under the will.

What does a will generally contain?

Among other things, a will should most importantly, include the following details:

  1. Specific distribution of specific property. For example, you may specify that your residential house will be inherited by your spouse.
  2. Naming an executor that is, the person who will administer your estate.
  3. Naming a guardian for minor children.
  4. Disallowing the inheritance to someone specifically. For example, you may specifically state that your elder son will not inherit any portion of your property.
  5. Making provisions for charities or people who are not immediate family.

When a person dies leaving behind a valid will, then the Probate Court will administer the estate of the deceased in accordance with his wishes under the will. The court will appoint an executor, who will be issued a ‘Letters of Authority’ and he will become the authorized person who will manage the estate of the deceased. After paying off the pending taxes, administration expenses and debts that were owed by the deceased, the executor will then ensure that the assets and properties of the deceased are distributed as per the terms of the will.

What if a person dies without a will?

If a person dies without leaving a will behind, then the Probate Court will appoint an administrator who will oversee the distribution of the estate of the deceased in accordance with Ohio’s intestate laws. The actual distribution of property of an intestate might be quite different from what he would have intended it to be.

How is the property of an intestate distributed under the laws of Ohio?

The property of an intestate is usually divided between the surviving spouse and the children in the following manner:

  1. If the deceased and the surviving spouse had all of their collective children with each other or if neither of them had any children, then the surviving spouse will inherit the deceased’s estate in entirety.
  2. If the deceased had more than one children with another partner and the surviving spouse is not a legal parent to any of them, then the surviving spouse will be given the first $20,000 of the estate plus one-third of the remainder.
  3. If the deceased had only one child outside of the marriage with the surviving spouse, then the surviving spouse will be given the first $20,000 of the estate plus half of the remainder.
  4. If the surviving spouse is the biological parent of atleast one of the deceased’s children, then she will be given the first $60,000 of the estate plus one-third of the remainder.

What types of assets are not subject to the probate laws?

A few types of assets can be transferred without having to go through the probate court process. These include:

  1. ‘Transfer on Death’ affidavit: This can be used for homes, real estate, care and vehicles.
  2. Bank accounts: The money in the bank account can be transferred by adding a ‘Payable on Death’ beneficiary to your bank account.
  3. 401k, investment and retirement accounts: These can also be transferred by naming the account beneficiaries at the time of signing up.
  4. A property in a revocable trust.
  5. Joint tenancy real estate.
  6. Beneficiary payouts for life insurance.

When is the probate process not applicable?

Under certain circumstances, the probate court process is not required to be followed. These are:

  1. No Probate Assets: Sometimes, no probate proceedings are required. This happens under two circumstances:
  2. Value of the estate is less than $5000 and the funeral expenses do not exceed $5000.
  3. Value of the estate is less than $45,000 and the surviving spouse is the sole inheritor.

 

  1. Expedited Probate: Sometimes, depending on the value of the estate, a formal probate through the court process is not required. Summary probate is applicable in two scenarios:

 

  1. If the value of the estate is less than $.35,000.
  2. If the value of the estate is less than $1,00,000 and the surviving spouse has all the inheritance rights.

 

More information about wills, probate and estate laws in Ohio can be found at: https://fclawlib.libguides.com/ohioprobate/introduction

Probate and Estate laws in Ohio can be challenging and daunting to understand. At Ziccarelli & Martello, our attorneys have years of experience with a successful track record to help you provide guidance and consultation relating to wills, probate and estate laws. Contact us today to know your rights and our team will be happy to help you.