Will for Record Only With or Without Taxes

Items necessary to file a Will for Record Only:

  1. Original signed will of the decedent;
  2. Base court cost deposit is fifty-eight dollars ($58.00);
  3. Tax forms, if filing taxes (information below on what forms are required) and an additional five dollars ($5.00) will be due; and
  4. In addition, you will need to complete the Probate Forms listed to the right.  The Probate Form 1.0 (Surviving Spouse, Children, Next of Kin, Legatees and Devisees) is a required attachment to the Application to File Will for Record Only.

Items necessary to file Estate Taxes: 

Note:  Under current Ohio law there are no Ohio Estate Tax filings required for decedents dying on or after January 1, 2013.  Therefore, the following information applies only to estates of decedents dying on or before December 31, 2012.

 

If there is non-probate real estate of the decedent, care should be taken to attach a legal description of all of the decedent’s non-probate real estate to the Form 22, Part I.  This information is essential to real estate title examiners.

  1. If an estate tax return is required and tax is due, then the following forms must be filed with the Probate Court:
    1. Original Ohio Estate Tax Form 2 (in duplicate, one will be returned for delivery by the filer to the County Auditor’s office);
    2. Original Ohio Estate Tax Form 5;
    3. Original Form 22, in duplicate (Part I and II, as Part I and Part II must be delivered by the filer to the County Auditor with the copy of the tax return and Form ET-5 for a secondary filing and stamping; and
    4. A copy of all the ET-2 attachments that will be filed with Auditor’s Office.  Once this is filed, the County Auditor’s Office will provide a "pay-in” form and directions for paying the taxes at the County Treasurer’s Office.
  2. If an estate tax return is required and no tax is due, then the following forms must be filed with the Probate Court:    
    1. Original Ohio Estate Tax Form 2 (in duplicate, one will be returned for delivery by the filer to the County Auditor’s office);
    2. Original Form 22 (Part I only; Part II is not required by the Probate Court or the County Auditor if no taxes are being paid); and
    3. A copy of all the ET-2 attachments that will be filed with Auditor’s Office.  
  3. If no estate tax return is required and the filer desires to make a filing, (primarily occurring when there is non-probate real estate of the decedent):
    1. Original Form 22 (Part I only, with the legal description of the non-probate real estate attached; Part II is not required by the Probate Court or the County Auditor, if no taxes are being paid).
  4. The staff of the Probate Court will neither deliver the filings to the County Auditor nor deliver the tax payments to the County Treasurer.  
  5. Estate tax filings (other than the filing of Form 22, Part I only when there is no return required to be filed and no tax is due) SHOULD NOT BE MADE BY MAIL.

Special Administration of Estates

RC Sections 2113.15 through 2113.17 provide that when there is a delay in granting Letters of Authority appoiting an estate fiduciary, or there is a delay in opening an estate, the Probate Court may appoint a special administrator for the decedent’s estate:

  1. To collect and preserve the effects of the decedent and grant such other authority as the Court considers appropriate; 
  2. To receive the debts of the decedent; and
  3. To complete such other duties as the Court authorizes and considers appropriate.

The special administrator’s duties shall end upon the appointment of the general estate fiduciary and the special administrator shall then transfer to the general fiduciary the assets in the possession or control of the special administrator and report the details of all claims that have been submitted.

The special administrator must file an account within 30 days of the appointment of the general administrator and shall be compensated from estate assets in such amount as the court determines appropriate.

When there is a delay in the appointment of the general fiduciary, creditors of the decedent should consider seeking the appointment of the special administrator sufficiently before the expiration of the 6 month’s post death claim filing deadline in order to allow time for the Court to process the application, give notice to those with a priority right to administer the estate (In re Estate of Tullos, 2012-Ohio-1114, 5th Dist.), and secure the appointment of the special administrator.

If the special administrator has received claims during the special administration Loc.R. 62.2 should be reviewed to determine the method of reporting those claims to the general estate fiduciary.

Items necessary to file a Special Administration

  1. Certified copy of the Decedent’s death certificate;
  2. Base court cost deposit is ninety dollars ($90.00); and
  3. Complete the Probate Forms listed to the right.

 

Frequently Asked Questions

How Long do I Have to Present a Claim Against a Decedent’s Estate?

The answer depends on the type of claim and the “pot” of assets the creditor or injured party is seeking to provide the funds for payment.  The categories of claims are:

  • An unsecured claim ( e.g. a claim for money owed on an account, a note, because of an injury, for reimbursement of the funeral expenses) if payment is being requested from general estate assets must be presented for payment within 6 months of the date of the decedent’s death.  The 6 month timeline begins with death, not when the estate is opened or when an executor or administrator is appointed.
  • Secured claims (mortgage on real estate, lien on vehicle, pledge of securities) do not need to be presented for payment, to the extent that payment is only being sought from the asset providing the security.  However, if there is a possibility that the asset providing the security will not fully satisfy the debt, then the claim for the deficiency must be presented within the 6 month window following the death.
  • Clams only against the decedent’s liability insurance for injuries caused by another (tort claims, e.g. injuries from auto accident, assault, intentional acts) in which recovery is being sought only from the insurance are not bound by the 6 month timeline; however, if recovery beyond the insurance coverage is sought from the decedent’s general estate assets, then the claims must be submitted within the 6 month window.
  • Medicaid Recovery Claims may be submitted for a period ending on the later of one year after the decedent’s death or 90 days after the filing of the Medicaid Recovery reporting form (Form 7.0) with the Medicaid Recovery Administrator by the estate fiduciary.  This special claims filing window makes the state Medicaid program a supercreditor.

How do I Timely Present a Claim?

An Executor or Administrator having a claim against the estate, to which they are appointed, should disclose the existence of the claim on the initial application for appointment.  To preserve the claim, the executor/administrator must file with the Court a claim in the case within 3 months of the appointment.  If the claim is for more than $500, the Court will set the claim for an evidentiary hearing not less than 4 weeks, nor more than 6 weeks, after the filing.  The Court may appoint a special master commissioner to investigate the validity of the claim, or may appoint an attorney to represent the estate at the hearing.  The fiduciary must notify all those persons or entities inheriting from the estate at least 20 days prior to the hearing of the date time and location and purpose of the hearing.  The interested parties may, in writing, waive the notice and may consent to the approval of the claim.

All other creditors must present their claims in one of the following ways, after the opening of an estate and the appointment of the estate fiduciary (but before the filing of the final account):

  1. To the executor or administrator in writing;
  2. To the executor or administrator in writing, and to the probate court by filing with it a copy of the written claim that has been filed with the fiduciary, or
  3. By sending a written claim by ordinary mail addressed to the decedent if it is actually received by the fiduciary within 6 month of the date of death.

If the final account has already been filed and the distributions made,  then the claim may be presented in writing to the persons or entities who received distributions of assets from the estate from which the claim would have been paid if the assets had not been distributed.

Claims not timely presented are forever barred by Ohio law as to the estate and all parties, including the estate beneficiaries, unless the beneficiary is otherwise obligated on the debt (e.g., a co-debtor). 

Is There a Fee to File a Claim?

There is no fee charged by a fiduciary for a claim presented to the fiduciary.  There is a nominal charge of $10.00 charged by the probate court for filing and docketing the claim in the estate case file.  The court’s filing fee must be tendered with the filing or the filing will be rejected.

Does The Timely Filing of a Claim Assure Payment?

When appointed the general estate fiduciary may allow a particular claim, or reject it by giving written notice of the rejection to the claimant of all or part of the claim.  If rejected, the claimant has 2 months from the date the notice of rejection is received in which to commence suit on the claim by filing a lawsuit on the claim in a court having general jurisdiction to determine the validity of the claim.  “Commencement” means the filing of both the Complaint on the rejected claim and a request for service of summons on the estate fiduciary. This lawsuit is not within the jurisdiction of the probate court.

A claim that is otherwise valid, but not timely presented must be rejected by the general estate fiduciary because Ohio case law holds that there is no authority for the fiduciary to pay it.  The fiduciary may be held personally responsible for improperly paying untimely claims.

Does Allowance of a Claim Assure Payment?

The payment of allowed claims by the general estate fiduciary depends on the estate being solvent, and also upon the relative priority given the claims of the type that the claim represents.  It is therefore important that the written claim clearly indicate whether the claimant is alleging that the claim is one of the claims having a statutory priority for payment ahead of general unsecured.  The type priority claims in descending order of priority for payment are loosely described as:

Costs of administration, certain expenses of funeral and burial within certain dollar limits, the $40,000 family allowance for the spouse/minor children, debts given priority under federal laws (taxes), expenses of the decedent’s last illness, claims under the state Medicaid Recovery program, and state and local taxes, debts for manual labor and service performed for the decedent within 1 year prior to the death, not exceeding $300 per laborer.  Other claims are considered general claims and have the lowest priority, but are still ahead of distributions to the estate’s heirs.

These are only generally categories, and claimants are cautioned to review the actual statutory language governing the order and priority of claims and give consideration to the specific language applicable to each type of claim.

Claims are categorized by the general estate fiduciary when appointed, not by the special administrator. 

Do Heirs Inherit the Debts of a Decedent?

Debts of a decedent do not pass to the decedent’s heirs, except to the extent that the debts are secured by assets the heir inherits and the debt were not paid in the estate.  An heir may become responsible for the payment of debts of the decedent to the extent that a distribution has been made to the heir by the estate fiduciary and insufficient assets remain in the estate to pay the valid debt.  In that case, the heir is responsible for payment of the debt, but never for an amount greater than the amount of the distribution and never more than the amount that the distribution received has to the total of the distributions to all beneficiaries of the same class.

If Someone Advances Money to Pay a Creditor of the Decedent, Does That Give Them a Claim Against the Estate of the Decedent?

Only to the extent of the payment and to the extent that the claim has been or will be timely presented to the estate and is not barred by a rejection.  The person paying the claim should obtain an assignment of the claim from the creditor.

Can I Execute on Estate Assets on a Judgment that I Obtained After the Decedent’s Death or on a Lien Perfected Prior to the Death?

No executions (forcible collections, seizures, judgment liens) may be issued against an executor or administrator without approval of the probate court, and then only against the undistributed assets then in the estate.  Pre-death secured creditors may enforce their liens against the asset providing the security without filing a claim or obtaining court approval, unless the estate fiduciary has already commenced an action to sell the asset in the probate court.
    

Do I need an Attorney to Present a Claim?

The benefit of good legal advice can be critically important to a person intending to file a claim.  It is critical to assure timely presentation, proper documentation, and clear identification of the priority claimed.  While having an attorney assist in the filing of a claim can enhance the prospects for payment, a claimant is not required to have an attorney.  Ohio law prohibits the Court’s staff from providing legal advice.

Short Form Release

A Short Form Release from Administration may be filed if the decedent’s assets are one thousand dollars ($1,000.00) or less.  A paid funeral bill must be submitted by the Applicant and if the funeral was not pre-paid, the person paying the funeral must consent to the distribution proposed in the Application.  A Short Form Release cannot be used to transfer real estate or a titled vehicle.

Items necessary to file a Short Form Release

  1. Certified copy of the decedent’s Death Certificate (the Deputy Clerk will make a copy and return the certified copy to you);
  2. Copy of Driver’s License or Government issued picture ID;
  3. Paid funeral bill which indicates who paid for the funeral expenses with a consent from the payor, if not prepaid;
  4. If the decedent has a Will, you may file the original will “For Record Only” for an additional charge of five dollars ($5.00) or Probate the Will for an additional charge of twenty dollars ($20.00);
  5. Copies of documentation establishing the value of all assets for which the short form release is requested;
  6. Complete a Medicaid Recovery Acknowledgment form;
  7. The base court cost deposit is thirty-five dollars ($35.00); and
  8. Complete the Probate Forms listed to the right. 

Frequently Asked Questions

If there is a situation in which an estate otherwise qualifies for a full Relief from Administration and

  1. the assets to be relieved do not include titled vehicles or real estate;
  2. the decedent’s probate assets to be relieved have an established value as of the date of death of not more than $1,000;
  3. consents to the proposed distribution are filed from all of the persons who would inherit the estate (beneficiaries under the will, or next of kin if there is no will);
  4. the funeral bill has been paid and the Applicant is the person who paid it, the payor has consented, or it was prepaid; and
  5. creditors will not be prejudiced.

then the abbreviated Short Form Release from Administration procedure may be followed.

This procedure is not available if the funeral bill is unpaid, the estate is insolvent, if the value of the asset cannot be established, or if the estate beneficiaries or funeral payor are unwilling to consent.

RELEASE FROM ADMINISTRATION

Under RC 2113.03, a surviving spouse may inherit the entire estate, without administration, if the value of the gross estate is $100,000.00 or less.  If there is not a surviving spouse, the heir(s) may be entitled to inherit without administration provided the gross estate has a value of less than $35,000.00.  In either instance, relatively minimal relief proceedings are required to be filed with the probate court. 

The guidelines for the determination can be found on the APPLICATION TO RELIEVE ESTATE FROM ADMINISTRATION, Form 5.0.  Also, the frequently asked questions set forth below should be considered as the applicable dollar limits may be reduced for decedent's dying in particular years.  Loc.R 75.5 also should be reviewed.

Items necessary to file a Release from Administration with a Will:

  1. Certified copy of the decedent’s Death Certificate (the Deputy Clerk will make a copy and return the certified copy to you);
  2. Copy of the your Driver’s License or Government issued picture ID (if filed without an attorney);
  3. Paid funeral bill with proof of who paid the funeral bill;
  4. If you are probating the Will, you will need Waivers from those listed on both sides of the Form 1.0, or give Notice of Admission of the Will to them and then file the Certificate of Service of Notice of Probate of Will (Form 2.4) with proofs of service or waivers.  There will be an additional Twenty dollar ($20.00) filing fee if the will is admitted;
  5. If you are filing the Will “For Record Only”, you will need to present the original will and the Application to File Will For Record Only (DCPC Form 2.0R).  There is an additional Five dollar ($5.00) filing fee for this filing;
  6. If you have any Titled Vehicles to transfer, you will need to file DCPC Form 9.3A or Form 9.C for each vehicle, provide a copy of the auto title (if available), and provide either a print out of the vehicle’s value from the Internet or an appraisal from an auto dealer.  There is an additional five dollar ($5.00) charge per vehicle;
  7. Copies of documentation, or appraisals, establishing the value of all bank accounts, contracts, or other assets for which release is requested. You may elect to use the County Auditor's market valuation as the estate valuation for the real estate instead of having a fair market value appraisal.  Then the value should be annotated as the "auditor's valuation" with a copy of the County Auditor's property record card identifying the parcel and the owner(s) attached.  A motion to dispense with the real estate appraisal is not required when using the County Auditor's valuation.  If you do not have the date of death valuation for an asset, you will need to complete and file the Motion for Authority to Obtain Release of Information;
  8. Complete a Medicaid Recovery Acknowledgment form;
  9. The base court cost deposit is Eighty-eight dollars ($88.00); and
  10. Complete the Probate Forms listed to the right that are applicable. 

Note:  The Estate Tax filings are not required for decedents dying after December 31, 2012.

Items necessary to file a Release from Administration without a Will:

  1. Certified copy of the decedent’s Death Certificate (the Deputy Clerk will make a copy and return the certified copy to you);
  2. Copy of Driver’s License or Government issued picture ID;
  3. Certified Marriage Abstract, if filing as the Surviving Spouse;
  4. Paid funeral bill, with indication of who paid it;
  5. Waivers from any family members who would also have the right to inherit under the Ohio statute of descent and distribution;
  6. If you have any Titled Vehicles to transfer, you will need to file a DCPC Form 9.3A or Form 9C for each vehicle, provide a copy of the auto title (if available), and a print out of the vehicle’s value from the Internet or an appraisal from a car dealer.  There is an additional five dollar ($5.00) charge per vehicle;
  7. Copies of documentation, or appraisals establishing the value of all bank accounts, contracts, or other assets for which release is requested. Absent the date of death valuation for an asset, then also a Motion for Authority to Obtain Release of Information;
  8. Complete a Medicaid Recovery Acknowledgment form;
  9. The base court cost deposit is Eighty-eight dollars ($88.00), cash or check only; and
  10. Complete the Probate Forms listed to the right that are applicable.

Note:  The Estate Tax filings are not required for decedents dying after December 31, 2012.

Frequently Asked Questions

When can the Release of Estate From Administration Process be used?

A Release of Estate From Administration proceeding may be filed if the decedent’s creditors will not be prejudiced and if a full estate administration has not already been opened for the decedent, provided that:

  1. The value of the decedent’s probate estate (the fair market value of the assets that require administration by the Probate Court) is $35,000 or less if there is no surviving spouse and the death occurred on or after November 9, 1994; or
  2. There is a surviving spouse who is the sole beneficiary of the decedent’s estate and the gross value of the estate is $100,000 or less and the death occurred on or after March 18, 1999.

Smaller dollar limits apply for deaths in earlier years (see FAQ "Maximum Limits" below).

Often, it is felt more expedient to proceed with a full administration because of the delay that can result from the requirement that the initial filing must include all of the creditors of the estate and also reflect the amounts due each of them.  This information may not be readily available in the period immediately after death.

If an estate that otherwise qualifies for release also has contentious or complicated issues it is generally more appropriate to pursue a full administration rather than a release. Insolvent estates should not be handled through the release process.   

How long does the case take?

The Release from Administration generally can be completed much more quickly than a full administration.  There may be a delay in the commencement of the release case while the information establishing the creditor’s information is collected.  The timing of the filings and the completeness of the forms and documentation are wholly within the control of the Applicant.  Once the complete Application to Relieve is filed and the supporting documentation pertaining to ownership, values, family, heirs and next of kin is provided, the Entry Granting Release from Administration will generally be approved within one week, depending on whether the Court directs that newspaper publication of the Notice of the Application be made in the case.

Is there a limitation on the type of assets that may be released?

No.   The Court may release from administration any asset over which it has jurisdiction.

Does using the Release process save estate taxes?

No.  Estate taxes are not determined by the process followed for the administration of an estate, or even by whether the assets are transferred through probate proceedings or through a non-probate mechanism for a transfer (designation of beneficiary, joint, or survivorship ownership).  Estate taxes arise from the decedent having an ownership interest in an asset at death and then the tax liability is calculated based on the total value of the decedent’s estate, the beneficiary of the assets, the relationship to the beneficiary or heir to decedent, and the amount of the decedent’s debts.

The Ohio Estate Tax filings are not required for decedents dying after December 31, 2012.

What are the Maximum Limits for Release for Deaths in Earlier Years then described in FAQ 1?

If no surviving spouse at death:

  1. Assets are $15,000 or less and decedent died on or after January 1, 1976 and prior to October 20, 1987, or
  2. Assets are $25,000 or less and decedent died on or after October 20, 1987 and prior to November 9, 1994.

If there is a surviving spouse at death who is entitled to everything and:

  1. Assets are $50,000 or less and decedent died on or after April 16, 1993 and prior to September 14, 1993, or
  2. Assets are $85,000 or less and decedent died on or after September 14, 1993 and prior to March 18, 1999.

Does the Applicant need an Attorney?  

Due to the technical aspect of the legal process, the language, and the permanency of the outcomes, the Probate Court strongly recommends that all Applicants seek legal counsel.  Good legal advice will hasten the probate process, prevent costly mistakes, and lessen the chances that the Applicant will be faced with suits by other heirs, creditors or family members.  Deputy Clerks of the Probate Court are prohibited by Ohio law from assisting in the preparation of the required forms.