Just the other day, a friend mentioned that she had overheard someone say, “If you have a will, your loved ones don’t have to go through probate.” I am confident the individual offering that advice was NOT an attorney because that statement is not valid. But it does highlight one thing: probate is definitely misunderstood by many, and there are many misperceptions surrounding it. So, I’m repeating the following post, originally written in March 2023. It provides a basic overview of probate with an example of how it might impact your loved ones.
Before getting into timing, I want to clarify what probate is and who must go through it. 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 his 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 this is not required. Individuals can handle all the steps on their own without an attorney, but those who have done so 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 directly out of Robert’s pocket.
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 appointing an executor for the estate. In our example, it would 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), allowing 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 identify other beneficiaries, but as the sole heir, he doesn’t need to. He will need to notify his dad’s creditors, address any claims, 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, must petition the court to close the estate. Upon approval, the assets can be distributed, in this case, just going to Robert.
EXCEPTIONS
There are exceptions to everything, and probate is no exception! For example, in Ohio, if the estate’s value is under $35,000, probate may not be required. Or, if the probate estate is $100,000 or less and the entire estate goes to a surviving spouse, a “summary probate” might be in order.
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: “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 this information about probate and the time limit for filing probate after death here in Cincinnati has been helpful. I’d be happy to help if you find yourself in a similar situation to 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.