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Frequently Asked Question for Estate Administration

The following are common questions that have often been posed to our office:

What is Estate Administration? back to top

When an individual dies, certain assets of the decedent (non-probate) may be transferred by contract, such as joint and survivorship property or payable on death accounts. Other assets (probate) may be transferred through proceedings in Probate Court. Most persons die owning both probate and non-probate assets, all of which generally require some type of documentation to complete the transfer. There are advantages and disadvantages in using non-probate or probate proceedings. It is prudent to consult an attorney to determine the best manner in which to hold one's assets.
It is the Probate Court's responsibility to ensure the probate assets are collected, maintained, and distributed among the decedent's heirs, beneficiaries, and/or creditors according to the direction of the decedent as expressed through a will and if there is no will, through the laws of Ohio. This process is known as the administration of a decedent's estate.

How Soon Should The Estate Be Opened? back to top

The estate should be opened within a reasonable time and as soon as practicable, especially where there are debts to be paid. If an estate is not timely opened, any interested person, including creditors of the estate, may apply to be appointed to administer the estate.

Who Administers The Estate? back to top

Once the Probate Court is notified of the decedent's death, and receives the proper documents, the Probate Court appoints and issues Letters of Authority to a suitable and qualified fiduciary. The fiduciary is appointed according to the decedent's Will, or if there is no Will, by statutory guidelines. A bond may be required of the fiduciary to protect the beneficiaries and creditors of the estate and to ensure proper administration.
If the decedent died with a Will the fiduciary is called the Executor and if the decedent died without a Will, the fiduciary is called the Administrator. A fiduciary, even though named in the Will, has no authority to administer the estate, until the Probate Court makes the appointment and issues the Letters of Authority.
Once appointed by the Probate Court, it becomes the responsibility of the fiduciary to administer the decedent's estate and to account to the Probate Court for the administration. A fiduciary that fails to perform his or her duties is subject to removal by the Probate Court.

What Are The Duties Of The Fiduciary? back to top

The fiduciary (whether an Executor or an Administrator) may be an individual or a bank having trust powers.
The fiduciary's duties are:
    1. To determine the names, ages, and degree of relationship of heirs;
    2. To take possession of, and conserve all of the real and person property of the decedent;
    3. To have all property appraised where the value is not readily ascertainable;
    4. To file with the Probate Court, within three months of the appointment, an Inventory of all the assets held in the name of the decedent;
    5. To receive and determine the validity of all claims against the decedent's estate;
    6. To timely file all tax returns and to pay income and estate taxes, if any;
    7. To make distribution of the estate's assets to the proper beneficiaries, and
    8. To file an account with the Probate Court of all receipts and disbursements made by the fiduciary

Does A Fiduciary Need An Attorney? back to top

Due to the complexity of the law and the legal process that is involved in estate administration, the Probate Court strongly recommends that all fiduciaries seek legal counsel. Good legal advice and guidance can expedite the probate process, prevent costly errors, and insure that the fiduciary is not cited by the Probate Court for the failure to properly perform his or her duties, or sued by beneficiaries for malfeasance.

Who Can Practice Law In The Probate Court? back to top

By law, legal practice in the Probate Court is restricted to attorneys who are licensed by the Supreme Court of Ohio. If an individual wishes to handle his or her own case, that person may do so, however, such person may not represent others. Due to the complexity of the law and the desire to avoid costly errors, an attorney represents most individuals who have matters before the Court. Deputy Clerks are prohibited by statute from practicing law, which includes giving legal advice, instructions on which forms are required or how to fill out forms.

How Are Attorney Fees Determined? back to top

There is no minimum or maximum attorney fee for the administration of an estate. Attorney fees are not to be paid until the attorney has prepared the final account for filing, and until our unless the Probate Court authorizes it by application adn order, or consents; see our local rules on fees for computations as well as the fee calculator on this web site.

How Are Fiduciary Fees Determined? back to top

Ohio law sets forth fees that are permitted for a fiduciary of an estate. The statutory fees are:
  • 4% of the first $100,000 of personal property and proceeds of real property sold;
  • 3% of the next $300,000;
  • 2% of the balance;
  • 1% on the value of real property not sold;
  • 1% of all property that is not subject to probate administration and that is includable for purposes of computing the Ohio estate tax, except joint and survivorship property.
The fiduciary may waive the fee. When a fee is taken it must be included on the fiduciary's personal income tax return as income.

How Long Should It Take To Administrate An Estate? back to top

The majority of estates for decedents with a date of death 01/01/2002 and after should be finalized within 6 months of the date of the appointment of the fiduciary. However, where there is family, creditor or tax disputes or other similar litigation, the estate administration may take longer to conclude.

What Are The Steps In A Full Administration? back to top

All estates are not alike, and can differ for a number of reasons. An estate may be testate (with a Will) or intestate (without a Will). The nature, and ownership of assets can vary and so too does the procedure for transferring those assets. Next of kin vary and so do very important notice requirements. Sometimes the fiduciary must address issues of spousal rights or even issues of insolvency where the estate's debts exceed the estate's assets.
Because of these differences each estate is treated differently. As a general matter, the basic steps of administering an estate pursuant to Ohio law is as follows:
    1. Application for authority to admit the Will to probate, if one exists, and for authority to administer the estate;
    2. Appointment of a fiduciary; Gathering assets and obtaining appraisals as required;
    3. Filing an Inventory in a timely manner;
    4. Determining debts, the sufficiency of assets and the payment of creditors;
    5. Timely filing of income tax returns, the Ohio Estate Tax return and the payment of taxes, if any;
    6. Distribution of assets to beneficiaries;
    7. Closing the estate by timely filing a final account or certificate of termination.

What Property Must Be Appraised? back to top

Property must be appraised if the value is not readily ascertainable. Examples of such property would be real estate, motor vehicles, household furniture, closely held corporations, and partnerships. The appraiser must be a suitable, qualified and disinterested.

What If There Is No Will? back to top

If the decedent had no Will, the estate is generally administered in a similar manner as if a Will had been probated. In completing the estate administration, the decedent's property is distributed according to the Statute of Descent and Distribution. If the next of kin are unknown, the filing of a civil action to determine heirship may be required.

Does A Will Have To Be Presented To The Court? back to top

A Will should be presented to the Probate Court as soon as practical after the death of the decedent, even if there are no known probate assets. A person who withholds a Will intentionally, negligently, or without reasonable cause may lose their right to inherit. An action may be filed to require the production of the Will any time after the death of the decedent, and failure to produce a Will upon Court Order may result in a fine and/or incarceration through contempt proceedings.

What If The Will Is Unclear? back to top

If the Will is unclear, a civil action to construe the Will may be filed in the Probate Court. The Probate Court will hold a hearing to determine the intent of the Testator, who made the Will.

May A Person Object To The Will? back to top

Any interested party may file a civil action to contest the validity of a Will. That party must establish, by clear and convincing evidence, the Testator was mentally incompetent to write a Will or was subject to undue influence in the preparation of the Will. A Will contest must be filed within three (3) months after the filing of a Certificate that all interested parties were given notice or waived notice of the admission of the will to probate for decedents who die on or after 01/01/2002, and no more than four (4) months after the filing of the certificate for decedents who die before 01/01/2002.

What is Survivorship Tenancy? back to top

Two or more persons in survivorship form may own real estate, so that upon the death of any one of them, the title of the deceased person would pass to the survivor or survivors. Title may be transferred without court proceedings by filing an affidavit and death certificate with the County Auditor and Recorder.

What is Joint and Survivorship Property? back to top

Joint and survivorship property is property held by two or more persons jointly; each party having equal rights of possession and income. On the death of one joint tenant, that interest transfers to the benefit of the survivor or the survivors in equal shares, without court proceedings. One joint tenant can sever the joint tenancy by conveying that interest to a third party.

Joint and survivorship ownership may be useful in certain situations. However, court proceedings may be necessary to transfer clear title to the assets and to determine Ohio estate taxes. Tax consequences can be detrimental to the beneficiaries if joint and survivorship ownership is used imprudently.

What Costs Are Involved In Probating An Estate? back to top

The costs involved in probating an estate are court costs, executor or administrator fees, attorney fees, and taxes.

Court costs are established by statute. The total costs for administering an estate will vary depending on the type of actions and pleadings that are filed. To open an estate there is an initial minimum deposit required of $130.00. Court costs for an average estate are usually less than $200.00.

May Funds Be Withdrawn From Bank Accounts? back to top

Accounts registered in the decedent's name may only be withdrawn by a Court appointed fiduciary or by Court Order.

Joint and Survivorship and payable on death accounts may be withdrawn by the survivor. In such accounts, the survivor or survivors can remove 75% of the date of death amount, but the balance may only be removed upon presentation of a valid tax release. Tax releases are obtained from the County Auditor whose office is located on the Third Floor of the County Annex Building at 129 E. Court Street, across from the Courthouse.

May Items Be Removed From A Safe Deposit Box? back to top

The contents of a safe deposit box may be released to a properly authorized representative of the estate. A deed to a burial lot and insurance policies may be released to the proper parties.

Does Reducing Probate Assets Reduce Estate Taxes? back to top

It is a common misconception that only probate assets are subject to estate taxes. Non-probate assets such as joint and survivorship assets and trust assets must also be included in the decedent's Ohio Estate Tax return. In the Ohio Estate Tax return, certain items may be deducted such as debts, administration expenses, and charitable gifts. In addition, other deductions and exemptions may be available that would also reduce the tax due.

Avoiding probate does not mean avoiding estate taxes.

What are the Ohio Estate Tax Rates? back to top

Please visit the Ohio Department of Taxation website, www.tax.ohio.gov, to determine if a tax return must be filed or not, and for forms.

What Is A Release From Administration? back to top

For dates of death on or after March 18, 1999, if the decedent's creditors will not be prejudiced and the probate estate consists of property of a gross value of $35,000, or less, the estate may be released from administration. When the surviving spouse is the sole beneficiary, and the probate estate consists of property of a gross value of $100,000, or less, the estate may be released from administration.

A release from administration is less complicated and may be completed more quickly than a full administration. If the estate asset is real property, however, you should consult with an attorney to avoid any costly errors.

Click here to access Forms for a Release From Administration

What Is A Summary Release From Administration? back to top

For decedents dying on or after August 28, 2000, there is an estate administration procedure called a "Summary Release from Administration".

This procedure is available if the estate assets do not exceed $45,000, and the applicant is the decedent's surviving spouse, who has paid the funeral bill or is obligated to do so, and who is also entitled to the entire allowance for support.

This procedure is also available where the applicant is not the surviving spouse, has paid or is obligated in writing to pay the decedent's funeral and burial expenses, and the value of the estate assets is the lesser of: $5,000 or the amount of the decedent's funeral and burial expenses.