Probate

Probate & Estate Administration

What is probate?

Probate is a legal proceeding to administer certain kinds of property (called probate property) owned by someone who has died (the decedent), and to see that claims, expenses and taxes are properly paid, and that the remaining estate is distributed to those entitled to receive it under the decedentss will or Ohio law. Probate property is all property titled in the decedent's name with no designated beneficiary or survivor tenant. It is distributed only under the decedent's will or according to laws of the decedent’s domicile. A probate proceeding takes place in the probate court of the county where the decedent lived.

Howard Schwartz routinely handles Hamilton County Probate, Butler County Probate, Warren County Probate and Clermont County Probate. If the deceased also owned real estate in another state, additional proceedings may be necessary in that state. Probate and Estate administration can be an emotional, difficult and complicated process. Settling a deceased person's estate or administering the assets of a trust requires expert legal counsel and information. Howard works closely with his clients, understands their needs and provides the counsel needed to complete the process in a timely and efficient manner. In addition, Howard goes out of his way to make certain that clients are fully informed and guided through each step of the process. He advises and represents beneficiaries, executors, administrators, personal representatives, trustees, heirs and interested parties in regard to probate and trust administration matters. Howard can help relieve the stress and anxiety associated with probate and trust administration proceedings by ensuring that you are properly represented.

What property is not included in probate?

Property that is not probate property, and therefore is not part of the probate proceeding, includes: property held by the decedent and another as joint tenants with right of survivorship; property held in a trust; accounts that are payable on death (POD) or will transfer on death (TOD) to a named beneficiary; and insurance or retirement benefits that are payable to a named beneficiary.

Property that must be included in probate and property that is subject to estate taxes are two different matters. Even if property is not included in probate, it still may be subject to federal or Ohio estate taxes.

Why is probate necessary?

Probate is necessary to give the executor or administrator legal authority to deal with the decedent's probate assets. The executor or administrator has the authority and duty to take control of and safeguard the assets of the decedent's estate. Probate then provides a process for the payment of outstanding debts, taxes and the expenses of administration, and for the distribution of the remainder of the estate to the beneficiaries and heirs.

What does probate involve?

Probating an estate requires the appointment of a person to conduct the administration of the estate. If there is a will, this person usually is named in the will and is called an executor. If there is no will or no person is named in the will, this person is appointed by the probate court and is called an administrator. The executor or administrator may be an individual, a bank or a trust company.

The executor or administrator takes care of the following tasks:

• caring for all property of the decedent;
• receiving payments due the estate, including interest, dividends and other income;
• collecting debts, claims and notes due the decedent;
• determining the names, ages, addresses and degree of relationship of all heirs;
• determining the names, ages and addresses of all beneficiaries, if there is a will;
• investigating the validity of all claims against the estate and paying all outstanding obligations including federal, state and local estate and income taxes;
• planning for federal and state taxes and preparing and filing estate tax returns when required;
• carrying out the instructions of the probate court pertaining to the estate and distributing the assets of the estate to the heirs.

Howard works on these matters in Hamilton County Probate Court, Butler County Probate Court, Warren County Probate Court and Clermont County Probate Court. These tasks require the preparation and filing of numerous legal documents, the provision of notices, hearings in court, an appraisal of the assets of the estate, an inventory of the assets, completion of final income tax returns and possibly gift and estate tax returns, an accounting of funds, final transfer of all assets to beneficiaries, termination of the probate proceeding, and discharge of the executor or administrator by the probate court. Howard can do all of this for you, so that you don't get overwhelmed with the complexity of these procedures.

How long does probate take?

Claims against the estate may be made up to six months from the date of death. A small estate that does not require the filing of an Ohio estate tax return and has no creditor issues often can be settled within six months of the appointment of the executor or administrator. However, if an Ohio or a federal estate tax return is required, the administration of the estate can last more than a year. However, in many cases, distributions of most or all estate assets do not necessarily have to wait until all probate matters have been completed.

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