What Does Probate Mean?

Many people get confused as to the meaning of probate. It is very simple. Probate is the process through with the Probate Court distributes the assets of a deceased person, that have not been distributed by some other manner, either in accordance with the person’s will, or if no will, through the laws of the State of Ohio. It consists of a 2 step process: 1) determining whether there is or is not a will and authenticating the will if one exists; and 2) distributing the assets of the individual according to the will or the Statutes of Descent and Distribution.

There are common misconceptions about the nature of “probate.” Some are minor, such as: executing a will is not probate. Depositing a will for safe keeping with the Probate Court is not probate. A Power of Attorney has nothing to do with probate.

Others tend to be more serious:

1) The probate process and estate tax issues are connected, but not related. They are two different things. It is easy to avoid probate. It is much harder to avoid estate tax, which may be owed whether or not an estate is probated.

2) Just because your will states that certain people are supposed to get certain things doesn’t mean that it is going to happen that way. Things that pass outside of probate, such as joint and survivorship property, are not governed by an individual’s will, and hence not subject to probate.

3) Most people can generally avoid the probate process with proper planning. In many cases, however, probating an estate may be beneficial. Examples may be if there are feuding family members and the court is needed to referee any anticipated controversies, or if there are custodial issues with minor children involving potentially large inheritances, or if there are incompetent beneficiaries, or if matters may be so complicated court intervention would be deemed necessary. All of these would benefit from the probate process.

4) Contrary to popular belief, the probate process does not eat up all of an estate’s assets. As mentioned above, estate taxes may be owed notwithstanding the probate process. In an estate, attorney’s fees are generally regulated by almost all Probate Courts in Ohio, and usually only skyrocket if the estate runs into difficulty, often times caused by irate individuals who cause problems through the process where there are none. Most estates are relatively cut and dry matters.

5) While there are obviously exceptions to the rule, probating an estate generally does not take an inordinate amount of time. The grieving widow unable to buy food because the estate is “tied up in probate” happens from time to time, but only rarely. Ohio has set up several types of probate procedures to make things easier. There Summary Estates which can be done in a day; No Administration Estates which can be finished in a matter of weeks at the latest, and the Full Administration Estate, the biggie, which takes about 6 months in normal circumstances, most of which is waiting for statutory time periods to run.

6) Complicated matters such as wrongful death actions, or pending class action litigation issues such as asbestos claims tend to lead to complicated probate procedures, and it is here that probably most complaints about the process occur. That being said, the procedures set up to handle these problems were done to rectify abuses to the system, and are there for your protection.

How probate relates to you either now, or after your death, varies with one’s circumstances. Many of the complicated matters usually arise from a misunderstanding as to what is subject to the probate process, and what is not. Take the time to review your situation, and consult with a professional if you feel a need.