I am sometimes asked how long an individual has to file probate after the death of a loved one here in Cincinnati. Good question. Before I answer, however, let’s talk about what probate is and who must go through probate.
The American Bar Association defines it as follows: “Probate is the formal legal process that gives recognition to a will and appoints the executor or personal representative who will administer the estate and distribute assets to the intended beneficiaries.” So, generally, whether your loved one had a will or not, probate is still necessary. That said, if there is a legally accepted and uncontested will, it is usually easier and quicker than without a will. There are always exceptions, but generally, having a will is very much advised.
STEPS & TIMING
Let’s talk about the steps and timing question using a typical example; an elderly widower, Stanley, dies. He had a will leaving all assets to the only child, Robert, his adult son. What happens now?
INITIAL STEP
The initial step is to find the original will. One hopes that Robert knows where the original will is and can easily access it. Once he has the will in hand, Robert will need to order his father’s death certificate. The Ohio probate court won’t open an estate unless they have proof that the decedent died.
WHAT’S NEXT?
Robert’s next task is to hire an experienced probate attorney though I hasten to say this is not required. Individuals may handle all the steps on their own without the help of an attorney, but those who have done this often tell others not to DIY it. It can be complicated and time-consuming. And, since the estate covers the cost of an attorney, those fees won’t come out of Robert’s pocket directly.
PETITION FOR PROBATE
With an attorney’s help, Robert will need to petition for probate, requesting that the will be admitted to probate. This needs to be done in the county in which the decedent died. This step also includes having an executor of the estate appointed. In our example, it would most likely be the only son, Robert.
In our example, with only one heir and no surviving spouse, things will likely go smoothly; after the hearing, the court will issue “Letters of Authority” to the executor (Robert in our example), making it possible for him to administer his dad’s estate. At that point, Robert must gather all the documents of his father’s assets. The Letters of Authority grant him that access.
MORE TASKS
If Robert had siblings, he would probably be identifying other beneficiaries, but as the sole heir, he doesn’t need to do that. He will need to deal with creditor claims, if any, and prepare an inventory of the estate’s assets. In Ohio, creditors have six months to make a claim under Ohio probate law. Robert, as executor, has three months from his appointment to prepare and file an inventory of his father’s estate.
Once all the creditors have been dealt with, Robert, with the help of his probate attorney, can commence wind up of the estate and distribution of the assets.
EXCEPTIONS
There are exceptions to everything, and probate is no exception! For example, in Ohio, if the estate’s value is under $35,000, a relief of short form administration is all that may be required. The same is true if the estate is $100,000 or less and the entire estate goes to a surviving spouse.
The above are just two examples of why hiring an experienced probate attorney is advised. That individual will be familiar with the requirements and how they apply to your particular situation.
HOW LONG DO YOU HAVE TO FILE PROBATE AFTER DEATH IN CINCINNATI?
And now to the question of “how long do you have to file probate after death?”
There is no deadline for when you have to probate a will in Ohio. However, if you know of the existence of the will and you are a beneficiary, if you have the power to submit the will for probate, you must do so within a year. Section 2107.10 of the Ohio Revised Code prohibits the withholding of a will and states:
- No property or right, testate or intestate, shall pass to a beneficiary named in a will who knows of the existence of the will for one year after the death of the testator and has the power to control it and, without reasonable cause, intentionally conceals or withholds it or neglects or refuses within that one year to cause it to be offered for or admitted to probate. The property devised or bequeathed to that beneficiary shall pass as if the beneficiary had predeceased the testator.
And there you have it! I hope that this information about probate and how long you have to file probate after death here in Cincinnati has been useful. I’d be happy to help if you find yourself in a similar situation as Robert in our example. Going through the probate process without the guidance of an experienced probate attorney can be difficult, particularly at a time when you may be grieving for your recently lost loved one. Please call me at 513-399-7526 or visit my website, www.davidlefton.com, to schedule a consultation.