The Probate Process

The probate process is an ancient process involving the transfer of assets owned by a decedent. The word decedent is of particular interest. Property that is owned by a trust, corporation, or by any other living person is not subject to the probate process. Merely meant as a mechanism to transfer title of ownership to an heir at law.

Heirs at law are those persons either named in a decedent’s will or as determined as what is known as the statute of dissent and distribution. This statute is a means for determining the closest kinship of the decedent and providing a way to divide up the assets that are owned by the decedent.

Generally property that is titled to a decedent must either sit until it is put into the state’s unclaimed funds logs or escheated to the state. For the heirs of the decedent to have title transfer to them, they must ask the court for an official decree granting them these rights. Since the person is no longer alive and capable of re-titling the assets, or otherwise giving away the assets, the only way a bank, financial institution or county recorder will acknowledge a transfer of ownership is by way of a probate decree.

In order to obtain these decrees, the person  must  be appointed the executor or the administrator of the estate. An executor is appointed where the decedent left a will. An administrator is appointed when there is no will.

Where an executor is appointed, he or she must post bond generally equal to twice the value of the estate. After doing so, the executor is granted “letters testamentary”. These are essentially the courts affirmation that said person has been appointed as the official representative of the estate. Third-parties such as banks  are now allowed to transfer funds to the executor in the name of  the “estate of decedent”. Those funds are then to be used for estate expenses with the remainder being distributed to the heirs of law. The executor is required to file and inventory of each and every asset of the estate, generally have all assets appraised, and report periodically the distribution of assets until there are none left. In Ohio, this process is meant to be completed within six months after the decedent.

An administrator is appointed when there is no will. Likewise an administrator must generally post bond equal to twice the value of the estate. The duties of the administrator then mirror those of the executor.

Problems associated with the probate process are claims of creditors, time of administration and cost of administration. In Ohio, the 88 counties have docket schedules for attorneys’ fees and executor fees. Your local county probate court generally has these available on their website or at the courthouse. As an example, a $100,000.00 estate incur executor and administrator fees of anywhere between $6,000.00 and $8,000.00.