WHAT IS AN ESTATE ADMINISTRATION?
When an individual passes away, certain of his or her assets transfer or pass automatically by contract such as joint and survivorship property; the remaining assets must be transferred through proceedings in Probate Court. It is the Court’s responsibility to insure that those assets are collected, maintained, and fairly distributed among the decedent’s heirs, beneficiaries, and/or creditors according to the directions of the decedent and the laws of Ohio. This transfer of probate assets is known as administration of decedent’s estate.
WHAT ARE THE DUTIES OF THE FIDUCIARY?
Once the Court is notified of decedent’s death and receives a request to administer the estate, the Court then appoints and issues letters of authority to a fiduciary (with a will, executor - without a will, administrator). It then becomes the responsibility of the fiduciary to administer the decedent’s estate and to account to the Court for that administration. A fiduciary who fails to perform his or her duties is subject to removal by the Court. The fiduciary, who may be bonded, is appointed according to the decedent’s will or by statutory guidelines.
HOW ARE FIDUCIARY FEES DETERMINED?
Ohio law sets forth fees for a fiduciary of an estate, or fees may be waived. Those fees are as follows:
4% of the first $100,000.00 of personal property and real estate sold under authority contained in the will
3% of the next $300,000.00
2% of the balance
1% is permitted on the transfer of unsold real estate.
DOES A FIDUCIARY NEED AN ATTORNEY?
Due to the complexity of the law and the legal problems that are involved in estate administration, the Court strongly recommends that all fiduciaries seek legal counsel. Good legal advice and guidance can expedite probate, prevent costly errors, and insure that the fiduciary is not cited or sued for mistake or wrong doing.
HOW ARE ATTORNEY FEES DETERMINED?
Applications for compensation and fees for executors, administrators, and lawyers must be reviewed by the Probate Court and may not be paid without Court approval.
Fees for lawyers are not specified by statute or by the Court. The Court reviews each application for fees and approves those which are reasonable for services performed. The Court does not recognize any minimum or maximum lawyer fees which will automatically be approved.
HOW LONG SHOULD ADMINISTRATION OF AN ESTATE TAKE?
Ordinarily, the average estate should be finalized within nine months of the date of appointment of the fiduciary. However, where litigation, federal tax returns, or creditor disputes exist, the estate may require a longer administration.
WHAT ARE THE STEPS OF AN ESTATE ADMINISTRATION
Notice of death and application for authority (probate of will if one exists);
Appointment of fiduciary;
Gathering assets and filing inventory (inventory is due ninety (90) days after appointment);
Payment of creditors;
Filing and payment of taxes (must be filed within nine (9) months from date of death) for estates of decedents who passed away prior to January 1, 2013;
Distribution of assets to beneficiary(s) or heirs; and
Closing the estate and filing a final account (accounting is due six (6) months after appointment).
WHAT IS A RELEASE FROM ADMINISTRATION?
Where decedent’s creditors will not be prejudiced, and the probate estate consists of property less than $35,000.00, the estate may be released from administration. An estate of $100,000.00 may be released from administration if all property passes to the surviving spouse of the decedent. A report of the distribution of assets is filed within sixty (60) days.
MAY FUNDS BE WITHDRAWN FROM BANK ACCOUNTS?
Accounts in decedent’s name alone may only be removed by a court appointed fiduciary. Accounts in the decedent’s name and other parties may have 75 percent of the amount removed by a survivor but the balance may only be removed, except in the case of a spouse.
WILL WITHDRAWING FUNDS FROM JOINT BANK ACCOUNTS PREVENT PROBATE COSTS OR ESTATE TAXES?
When appropriate, Ohio law requires proceeds from jointly held bank accounts to be included in the assets of the estate and/or subject to estate tax even if those proceeds have been withdrawn and are held in the name of the surviving party.
WHAT IF THERE IS NO WILL?
An estate where there is no will is generally administered in the same manner as if a will had been probated. However, the decedent’s property is distributed according to the Ohio Descent and Distribution Law. To determine beneficiaries, the filing of a civil action to determine heirship may be required.
WHAT IF THE WILL IS UNCLEAR?
If the Will is unclear, a civil action called a will construction must be filed in Probate Court.
WHAT IF THERE IS AN OBJECTION TO THE WILL?
Any interested party has the right to contest the validity of the will by filing of a will contest in Probate Court. Any action to contest the validity of a will must be filed no more that three (3) months after the filing of a Certificate of Service of Notice of Probate of Will for estates of decedents who passed away on or after January 1, 2002 and no more than four (4) months after the filing of the Certificate for estates of decedents who passed away before January 1, 2002.
MUST A WILL BE PROBATED?
The Last Will and Testament of a decedent must be presented to the Court within three (3) years of the decedent's death. If a will is withheld intentionally, negligently, or without some reasonable cause, by any individual, such person may lose their right to inherit. An action may be filed in probate court at any time after the death of the decedent to require the production of the will. Failure to produce a will upon court order may result in the holder being cited for contempt.
HOW IS A PROBLEM WITH AN ESTATE BROUGHT TO THE ATTENTION OF THE COURT?
Estate problems are brought to the Court’s attention by the filing of pleadings which are set for hearing with notice to all interested parties.
HOW ARE COURT COSTS DETERMINED?
Court costs are determined and established by statute in Ohio and the total cost for administering an estate will vary depending on the type of actions and pleadings filed. The average estate will require a deposit for costs of approximately $161.00.
WHAT PROPERTY MUST BE APPRAISED?
All property values which are not readily ascertainable, such as real estate, closely held corporation stock, and partnerships, must be appraised. The Court will appoint an appraiser where such items exist in an estate.
LEGAL PRACTICE IN THE PROBATE COURT
Legal practice in the Probate Court is restricted by law to attorneys who are licensed by the Supreme Court of Ohio. If an individual wishes to handle his or her own case, he or she may do so; however, they may not represent others. Due to the complexity of the law and the desire to avoid costly errors, most individuals who have filings before the Court are represented by an attorney. Deputy clerks are prevented by law from practicing law and, therefore, are limited in the amount of advice they are permitted to give.