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The Probate Process

Posted in Probate. Tuesday, Jun 28th, 2016

While there are various things that a person can do with the assistance of an estate planner to simplify and expedite the probate process, it can’t be entirely eliminated.  Likewise eventually most people will have a friend or family member pass away at some point and be involved in their probate process.  So what exactly is probate court and the probate process?  When a person passes their possessions and assets are involved in a settlement and distribution process as stipulated in the person’s will, that is managed by the probate courts that have jurisdiction over the area where the assets are physically located.  This is called probate.  So how does probate actually function?

The initial steps of the probate process are largely logistical.  It must be determined if the deceased has an existing estate plan with a will or other instructions to be followed.  Once that has been located their assets must be analyzed and located, first to determine the status of their assets, and second to see if anything additional to what is listed in the will or estate plan can be found.  It is not uncommon for someone drafting a will to forget about smaller or older assets, and it is important that everything is accounted for ahead of time.

Once wills have been located and assets analyzed, the executor of the estate will be able to determine if the estate is sufficiently large enough to require going through a formal probate with the courts, or if an informal probate can be used instead.  This is typically determined by a value threshold on the deceased’s assets: if there are no or few assets, or if the estate planning was put together in such a way as to avoid probate the process can be greatly simplified and expedited.

Appointing a Personal Representative

At this point someone must be selected to act as a personal representative in the probate process.  In cases where there is a will, the executor of the estate will often take up this duty.  Otherwise the court will typically assign the next of kin to the task.  If neither of these are competent or available, the court may assign one of the deceased’s creditors instead.

The personal representative essentially manages the estate during the probate process.  They will initially publish a notice of administration and notify any heirs and creditors that can be located, informing them of the probate, and instructing on how they may file claims against the estate.  Additionally throughout the process there will be various court filings that the personal representative must make.

The personal representative will have two sets of tasks that they are responsible for.  The first set involves handling all the matters that are necessary to “shut down” the deceased’s life: having utilities turned off and cancelling subscriptions to newspapers, magazines, auto-refilled orders, and any similar services; reporting to Social Security, employers and other interested parties that the deceased has passed; continuing to make mortgage, auto, and other payments on property; and returning mail tagged “deceased, return to sender”.

The second set of tasks involves the distribution of property.  The personal representative must collect claims against the estate and determine their validity, and determine who any heirs are as well as what share of the estate they are entitled to.  Once that has been settled, they must distribute payment to parties that are entitled to compensation for debts per the state probate code, after which  the probate court will give permission for the remainder of the estate to be distributed amongst the heirs based on the will or probate code depending on the situation.  Lastly the personal representative must finalize any remaining details and file their receipts with the court, completing the process.

Ohio Probate Attorneys

This may seem like a straightforward process, but inevitably legal issues will arise.  If you or a loved one needs legal representation in a probate matter, we encourage you to Contact the Law Office of Mike Gertner today to discuss your needs with a representative today.