Handling the death of a loved is often an emotionally draining experience. As the executor of your loved one's estate, wrapping up their affairs is an added challenge. Upon death, the property of the deceased becomes known as the “probate estate.” Use this checklist to determine the proper approach.
1. Figure out if probate is necessary.
Ohio probate law requires probate unless one or more of the following applies:
- the estate is part of a trust
- the assets of the estates are owned under “survivorship tenancy” or “joint and survivorship” like jointly held real estate and jointly held bank and financial accounts, which pass to the remaining survivor
- the assets are subject to beneficiary designation, payable upon death or transfer upon death (e.g. insurance policy, retirement plans, bank accounts, automobiles, etc.)
- There are no assets of the decedent which need passed on
Probate is required regardless of whether there is a will. Cases where there is no will are referred to as “intestate.”
If the estate is large, and/or businesses or real estate are included, probate is almost certainly required to legally re-allocate the assets of the deceased to the intended heirs and beneficiaries.
2. Decide on an approach.
All probate cases can benefit from the use of an experienced probate attorney. The more assets and or tax liabilities that an estate has, the more complexity involved increasing the benefit from hiring an attorney to assist with probate proceedings.
Ohio probate law permits attorneys receive their fees from the proceeds of the estate. And, the fees cannot be released from the estate to the attorney until close to the end of the matter, so out of pocket funds needed to begin are minimal.
The amount of assets available for distribution will affect the category of probate case filed. Most estates are filed as “Full Estates.” Where the assets are under $100,000 for a filing surviving spouse, or $35,000 for other filing next of kin, the procedure is referred to as “Release from Administration” and involves less paperwork, time and filing fees. Finally, where the assets are under $40,000 for a filing surviving spouse or $5,000 for other filing next of kin, the court calls this “Summary Release.”
3. File the will and death certificate with the court.
In accordance with probate rules, the initial filing will include an original death certificate, identification of next of kin, the original will, if one exists, application to administer, and if no will exists and possibly the posting of a performance bond which is an insurance policy insuring that the administrator properly disburses funds.
File an original death certificate and original will with the court.
4. Locate and manage the assets.
If there is a will, the fiduciary of the estate is referred to as the Executor, and if no will, the Administrator. As executor or administrator, it is your responsibility to keep the assets safe and secure during the probate process, as well as, take a full inventory of the assets. This may include having the assets appraised in order to determine their value.
For this step, you will need:
- an Employer Tax Identification number from the IRS for the estate
- an estate bank account
After you have obtained these, you will need to locate all assets, secure them and liquidate most financial instruments and deposit the proceeds into the estate bank account. Many estates have an estate sale or auction to liquidate property which is not given directly to beneficiaries. Also, you will need to evaluate any and all contracts and leases, and terminate any that are obsolete.
Outstanding expenses, relevant state or federal taxes and debts also need to be paid in full. Any person advancing funds for funeral services, utilities or other pre-filing expenses can be reimbursed.
As the executor, you must determine a claim's validity. Creditors have 6 months to respond to the probate estate and file a legal claim for money owed. State-imposed regulations and deadlines for when and how all creditors are paid and in what order apply so you must verify these rules.
5. Closing the estate
Once all assets are gathered and debts paid, the executor or administrator can begin distribution of the estate's assets, which can be in a check or in-kind, which means the distribution of actual assets like furniture and other goods.
When completed, the fiduciary is required to file with the court a detailed list of receipts and disbursements and the final fiduciaries account. When these are approved, the court will issue an order dismissing you from further responsibility.
Dealing with the loss of a loved one is never easy. This, combined with the duty of acting as executor of the deceased's estate may seem overwhelming at first.
But with a checklist of your obligations at the ready and the help of an experienced probate attorney, the probate process is less intimidating, giving you the peace of mind you need to honor your loved one's wishes and memory.