Full Administration With A Will Or Without A Will
When a person dies and leaves assets in their name, certain steps must be taken to transfer those assets to their heirs or beneficiaries of that person’s estate. There are two types of assets: probate assets and non-probate assets. Probate assets are those that must be transferred through the Probate Court and include, but are not limited to, bank accounts, real estate, automobiles, and personal items that are titled solely in the name of the decedent. Non-probate assets are those that automatically transfer upon death, such as jointly held bank accounts with rights of survivorship, life insurance policies with a designated beneficiary, real estate that is jointly held through a survivorship deed or under a transfer upon death designation affidavit.
Probate assets transfer to beneficiaries with the supervision of the Probate Court in either of two ways: through the directives contained in a property executed will, or if there is no will through the application of the Ohio statutes of descent and distribution.
There is no statutory limit on the value of probate assets that can be transferred through a full administration. It is the only option for larger estates and it is often the method choice for even smaller estates. Consultation with an attorney experienced in probate court procedures is recommended when contemplating a full estate administration.
Items necessary and suggested to file a full administration:
- Decedent must have been a Delaware County resident at death;
- Certified copy of the decedent’s Death Certificate (the Deputy Clerk will make a copy and return the certified copy to you);
- Copy of Driver’s License or Government issued picture ID of the applicant (if filed without an attorney);
- If probating a Will, prior to filing the Will consider obtaining all of the necessary Waivers of Notice from those persons and entities listed on both sides of the Form 1.0, and complete the Certificate of Service;
- If there is a surviving spouse and a Will, consider obtaining prior to filing the Spousal Election (either Form 8.1 or 8.2, as applicable) and Waiver of Service of Citation to Surviving Spouse ( Form 8.6);
- The base court cost deposit is two hundred dollars ($200.00); and
- Complete the applicable Probate Forms listed to the right.
Note: The Estate Tax filings are not required for estates of decedents dying on or after January 1, 2013.
The process of ensuring that the decedent’s probate assets are collected, protected and distributed among the rightful heirs, beneficiaries and creditors according to the decedent’s will or applicable law is known as the administration of an estate and is handled through the Probate Court of the decedent’s domicile (generally the county of residence or if the decedent was a non-resident of Ohio then in the county where property of the decedent is located).
It provides for an orderly conclusion and wrap-up to the decedent’s financial affairs thereby facilitating the ability of the heirs and survivors to continue life with the minimum of disruption.
To the extent that the decedent held non-probate assets that transfer at death by reason of the manner in which they were titled (joint and survivorship, payable on death, designation of beneficiary) the Probate Court will not be directly involved, except to the extent that they must be reported on an Ohio estate tax return or if the beneficiary designation or transfer mechanism fails to be effective by reason of defective creation or the prior death of the named death beneficiary.
How Soon after Death Must the Estate Be Opened?
There is no statutory limit on opening an estate; however, most estates are opened within 30 days of death so that matters can be handled in a timely basis to assure that benefits are preserved, assets are not scattered, and matters can be addressed while the memories are fresh and documents can be located. If the estate is not timely handled, creditors or other interested persons may apply to be appointed to administer the estate or apply for the appointment of a special administrator to preserve assets and receive filed claims.
If there is an intention to present an “oral will” special time limits make prompt commencement of an estate administration imperative. (See below for "Oral Will")
Must the Will be Presented to the Court?
If there are no probate assets to administer, there is no requirement that the will be presented to the Probate Court; however, Ohio law provides that no will is effective to pass personal or real property unless it has been presented and admitted to probate (RC 2107.61). It provides that a person knowingly withholding a will from the Court without reasonable cause for a period of more than 1 year may be held to have forfeited the right to inherit under the will. Oftentimes, even if there are no probate assets, the decedent’s will is filed with the Probate Court after death “for record only” to assure that it has been timely presented and will be available if later probate assets are discovered.
Can an Oral Will be Effective?
An oral statement made by a decedent during the last sickness, while of sound mind and memory, may be effective to pass personal property, but NOT to pass real estate. To be effective for any purpose it must be reduced to writing within 10 days of having been spoken and witnessed by the two people who heard the utterance. Thereafter, the writing must be presented to the Probate Court within 3 months after death. (RC 2107.60)
What is the First Determination?
The initial determination that should be made is whether the value of the assets, nature of the heirs, and extent of the debts permit the handling of the estate through one of the abbreviated procedures known as Release from Administration, Summary Administration, or Short Form Release. There are FAQ’s for each of those procedures on this website within the "Estates" tab.
Who Administers the Estate?
If there is a will, and if it is admitted (accepted) for probate, the person named in the will as the Executor will generally be appointed. If there is no will, the Court will appoint a suitable Administrator, giving priority to the surviving spouse, if any, and then to other relatives within a statutory scheme, recognizing that the person appointed must be suitable and qualified to handle the duties required. Letters of Authority are issued to the appointee (also referred to as the fiduciary). Prior to the appointment being made, the fiduciary must sign a written acceptance of the duties, and there may be a requirement that the fiduciary posts a financial surety bond to protect the heirs and creditors against a loss if the fiduciary would fail to properly complete the task or mishandle the assets. The Court may remove a fiduciary who fails to administer the estate with reasonable diligence or who violates the duties imposed by law.
What are the Fiduciary’s Duties?
While the duties will vary greatly depending on the asset mix, the family relationship and whether the decedent’s estate is solvent (more assets than valid debts), the fiduciary in every estate must do the following:
- Determine the names, ages and degree of kinship of the heirs to the decedent and to one another.
- Take possession of and protect the assets of the decedent.
- Appraise all property that does not have a readily ascertainable value. The estate fiduciary may elect to use the County Auditor's market valuation as the inventory valuation for the real estate instead of obtaining a fair market value appraisal. In that event, the inventory listing should be annotated as "auditor's valuation" and a copy of the County Auditor's property record card indentifying the parcel and the owner(s) should be included. A motion to dispense with appraisal is not required when using the County Auditor's valuation.
- File a written Inventory and Appraisal of the decedent’s assets within 3 months of being appointed.
- Receive and determine the validity of all claims submitted against the estate and reject any untimely or invalid claims.
- File timely tax returns (income, estate, sales, etc.) and pay the taxes due in order of their statutory priority and to the extent that there are estate assets from which to pay them.
- Pay valid claims in the order of priority set by law and to the extent there are assets available.
- Liquidate (only if necessary, or directed) and distribute assets to the proper heirs and in the proper amounts pursuant to the will, or if there is no will, then pursuant to Ohio law, but only after all clams, debts and cost of administration have been paid or are secured to be paid.
- File accountings with the Court reflecting all of the receipts and distributions.
How Long Does it Take to Administer an Estate?
The majority of estates are administered within 9 months of appointment of the fiduciary; however, issues surrounding taxes, creditors’ claims, the ambiguity of documents, family conflicts, or other civil litigation may extend the estate administration. Court approval must be obtained to extend the administration beyond 6 months from the appointment of the fiduciary. The fiduciary may determine that partial distributions can be safely made to heirs before the estate is formally closed. It is important to commence the estate soon after death since the estate can never be concluded until it has been opened.
What if there is no Will?
For persons who die without a will (intestate), the Ohio legislature has established by law who will succeed to the property of the decedent. It gives varying degrees of priority to the surviving spouse, depending on whether there are children of the decedent and whether the surviving spouse is the parent of at least one of the children. It there is no spouse or children of the decedent, then other relatives are classified by degree of kinship and prioritized. The Statute of Descent and Distribution must be read carefully before distributions are made. Only rarely does the decedent’s estate pass to the State of Ohio by escheat.
What if the Will is Ambiguous?
If the fiduciary fails to bring an action after 30 days, another interested party may request the Court to provide directions, interpretation, or construction of a provision of the decedent’s will by commencing a civil action in the Probate Court (See “Civil Proceedings” tab on this web site). All interested parties will be served with notice of the action and the Court will hold a hearing to determine the intent of the decedent.
What if the Will is Believed to be Invalid?
If the will appears to be prima facie valid (proper age, number of witnesses, signature, etc.) it will be admitted to probate by the Court and written notice of its admission will be given by the applicant or the fiduciary to all next of kin and persons who would inherit if there was not a will. Admission of the will does not barr a later contest as to its validity.
An interested party may contest the validity of the will by commencing a civil action in the probate court in the county in which the will was admitted to probate (See "Civil Proceedings" tab on this website). The legal presumptions are in favor of the will and the mental capacity of the testator and against undue influence having been exerted over the maker. The person contesting the will has the burden of proof and the contesting party must establish by a preponderance of the evidence that the testator lacked the mental capacity to make a will, was subject to undue influence in the preparation or execution of the will, that the document was improperly executed, or that the will is a forgery.
Any party to the will contest has the right to request a jury trial of the matter and three-fourths of their number must concur in the verdict. In general, a will contest must be commenced within 3 months after the filing of the Certificate of Service Waiving Notice (p. 2, Form 2.0) or Certificate of Service of Notice (Form 2.4) of probate of will. Persons considering contesting a will should promptly consult legal counsel, as the time for contesting a will is quite short.
What is the Estate Tax?
Currently there is a Federal Estate Tax. It is beyond the scope of this discussion to provide details of the current federal estate tax. It is the fiduciary’s duty to determine if a particular estate is required to file a federal estate tax return (Form 706) and if so, the return is due within 9 months of the date of death, unless extended.
For persons dying on or after January 1, 2013, under current Ohio law there is no Ohio estate tax.
For persons dying prior to January 1, 2013, if the value of the gross estate exceeds $338,333 a tax return must be filed and an estate tax may be due. It is the fiduciary’s duty to determine if the particular estate is required to file an Ohio estate tax return and if so, the return is due within 9 months after the date of death, but is automatically extended to 15 months after death, although interest accrues on any tax not paid within 9 months of death.
An Estate Tax Form 22 must be filed with the Court in every estate when the decedent died on or before December 31, 2012.
Is an Attorney Required for a Fiduciary to Administer an Estate?
Due to the complexity of the law and the legal process that is involved with administering an estate the Probate Court strongly recommends that every fiduciary seek legal counsel. Legal fees for services to the fiduciary, when approved by the Court, are properly payable from estate assets. The fiduciary is making decisions that have a direct bearing on the legal rights and benefits of every creditor and heir. Not only may a fiduciary be personally liable for making incorrect decisions, prejudicing those interests and rights, but the Court may impose sanction and damages. Under Ohio law "pro se litigants are bound by the same rules and procedures as those litigants who retain counsel. They are not to be accorded greater rights and must accept the results of their own mistakes and errors." Meyer v. First Nat. Bank of Cincinnati, 3 Ohio App.3d 209, (1st Dist, 1981).
Court employees are prohibited by statute from practicing law, cannot complete forms and CANNOT give legal advice.