Important Probate Rules Everyone Should Know

Posted by Rebecca Yingst Price | Oct 05, 2023 | 0 Comments

When a person dies, what happens next depends on whether the deceased person had any foundational estate planning documents such as a Last Will and Testament (otherwise known as a Will) or trust, who the living relatives are, and their relationship to the person who died. If the deceased person did not have a trust or will, the state where the deceased person resided has rules for overseeing how the deceased person's money and property are to be distributed. If the deceased person died owning accounts and property in their sole name and had a Will, it will contain instructions for what is to happen to the decedent's money and property and must be filed with the Probate Court. Probate is a formal legal process of proving that a Will is valid (if the person had a Will), appointing someone to carry out the deceased person's wishes (known as a personal representative, executor, administrator or generally as the Fiduciary), and supervising the distribution of the deceased person's money and property.  In short, a Fiduciary is someone who manages the money or property for someone else.  A Fiduciary is required by law to manage the person's money and property for their benefit (or the benefit of their beneficiaries), rather than for their own benefit.

While probate rules can vary by state, there are some important ones that you should be aware of should you need to wind up a loved one's affairs.

Deadlines

Deadlines are important rules that must be followed during the probate process. Failing to meet these deadlines could get you in trouble with the court.  When an Estate is opened, it is important for the Fiduciary (the person administering the estate) to track all of the deadlines to avoid getting citations from the Probate Court.  If the Fiduciary has an attorney, then the attorney should be keeping track of these deadlines and helping the Fiduciary complete the filing requirements in a timely manner.

When and if to file the Last Will and Testament. If and when a Will must be filed with the probate court can vary by state, but it is important that you understand when this task needs to be completed. Some states require that your loved one's Will be filed with the probate court within a certain number of days after your loved one's death, while others only require that a Will be filed if a probate is necessary. This usually occurs when the decedent died owning accounts and property in their sole name that need to be transferred. Once the Will is filed, the court will generally begin by reviewing the Will to ensure that it was properly made and signed. If the court is satisfied, it will appoint the Fiduciary.

In Ohio, prior to 2019, there was no requirement that a Will be filed with the Probate court.  On March 22, 2019, the Ohio legislature enacted ORC 2107.10 which requires a beneficiary that is named in a Will, who knows of the Will's existence, and has the power to admit the Will to probate, must take action to admit the Will to probate within a year of the death of the testator (the person who created the Will).  If they fail to fulfill this obligation, then that beneficiary is deemed to have died before the testator effectively disinheriting them.

Collecting and securing items. The Fiduciary must locate and secure the deceased person's money and property and create an inventory of all items. Deadlines for filing an inventory with the court are calculated from the date you were appointed as Fiduciary, and they vary greatly among states, from sixty days in Florida, ninety days in Ohio, to six months in New York. The inventory will include a valuation of the items as of the date of death. During this period, the Fiduciary may also need to establish a tax identification number for the estate and open an estate checking account for depositing estate funds.

Notifying creditors. In many states, the Fiduciary must notify known creditors and attempt to find unknown creditors. Generally, at the direction of the probate court and with the assistance of an experienced estate administration attorney, the Fiduciary is required to publish notice of the deceased person's death in appropriate newspapers to run for a specified length of time. This notice is typically published in the local newspaper where the person died. The purpose of this notice is to allow creditors, both known and unknown, time to make a claim to the estate for any debt owed. The Fiduciary must then determine the validity and priority of all creditor claims received and pay those claims as appropriate.

Ohio does not have a rule that the Fiduciary must notify creditors.  In fact, a creditor can only give notice of their claim to a court-appointed Executor or Administration.  They have six months from the date of death to give this notice or their claim is forever barred (i.e., the estate is not responsible for paying them).  Therefore, if an estate is not opened within six months of the decedent's death, then creditors will be out of luck. The only recourse for a creditor is to open an estate themselves within the six-month window in order to preserve this claim.

In it important for the Fiduciary to understand the laws of the state in which the estate is being administered since there is no universal rule.  One thing that is universal is the need for certainty.  Specifically, the creditor deadline gives creditors an opportunity to come forward with their claims, but it also provides a cutoff point for the Fiduciary so they can wind up the deceased's affairs in as efficient a manner as possible.

Maintaining and providing estate accounting records. The Fiduciaries must maintain accounting records as proof of monies coming into and going out of the estate. Depending on the circumstances, the accounting records may need to be filed with the court, and interested parties may need to sign releases at certain intervals.  In Ohio, the Fiduciary must file an account within six months of their appointment as Executor/Administrator.  Ohio Courts will allow an automatic extension by the filing of an Application to Extend Administration which extends the deadline from six months to thirteen months.

Filing and paying taxes.  A Fiduciary must ensure that the deceased's final tax return is filed by the personal income tax filing deadline of the year following the deceased's death. If the estate earns income after the deceased's death, the Fiduciary must file estate income tax returns (sometimes referred to as fiduciary income tax returns). Finally, a Fiduciary may have to file an estate tax return if required by law or for further tax planning. Each of these returns will have a specific deadline.

Who Has to Know

During the probate process, there are a lot of steps that are involved, and there may be multiple individuals who need to be kept informed about what is happening. If the deceased had a Will, this would include those named in the Will (beneficiaries). In some states, the deceased's relatives and the deceased's creditors can also be interested persons. When dealing with individuals other than those the deceased named in a Will, it may be tempting to leave them in the dark, especially if there has been bad blood. However, personal conflicts do not absolve the Fiduciary of the duty to keep an interested person informed and to provide them with the information they are legally entitled to.

Who Can Be in Charge

Another important probate rule is who can be appointed as a Fiduciary. The Fiduciary can be almost anyone. Many states require that the Fiduciary be an adult or emancipated minor. However, some states may not appoint a Fiduciary who is a non-US resident, nonstate resident, or a felon. In Ohio, unless an individual is named in a Will, they must be an Ohio resident to be able to serve.  It is important to keep in mind that most probate courts will require an executor who resides out-of-state to post a bond to be able to serve.  If there is no Will, the applicant must be an Ohio resident and must post a bond in order to be eligible to be appointed as the Administrator.

Most often, a Fiduciary is a surviving spouse, a family member, a close family friend, or an attorney. There is no requirement that the Fiduciary have any experience or expertise in handling estate matters nor is the person required to have any financial or legal experience or background.

We Are Here to Help

Probate is a process with many rules. We understand that this can be very overwhelming for many people, especially after the loss of a loved one. We are committed to working with named and appointed Fiduciaries in Ohio to ensure a smooth estate administration. If you would like to learn more about the probate process and what is involved, please give Ibis Legacy Law, LLC a call at 216-991-6200.

Disclaimer: This content is for informational purposes only and is not intended to provide, nor should it be relied upon as, legal advice, nor does the receipt of this content create an attorney-client relationship.

About the Author

Rebecca Yingst Price

Attorney Rebecca Yingst Price has devoted her legal career to helping families and individuals with estate planning, estate and trust administration, and residential real estate. She believes that there is no substitute for proper legal planning to protect loved ones. Ms. Price has vast experien...

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