Summit County Common Pleas - Probate Division

This online publication is designed as a service to the public in order to provide a general understanding of the duties and procedures of the Probate Court in reference to Estates. This should not be considered as a legal reference. If you have a legal question dealing with Estates, an attorney should be consulted.

When an individual dies, certain of his or her assets transfer or pass automatically by contract (i.e., joint and survivorship property); the remaining assets must be transferred through proceedings in the Probate Court. It is the Court's responsibility to insure that those assets are collected, maintained, and fairly distributed among the decedent's heirs, beneficiaries, and/or creditors according to the directions of the decedent and/or the laws of Ohio. This transfer of probate assets is known as the administration of decedent's estate.

Once the Court is notified of decedent's death, and receives a request to administer the estate, the Court then appoints and issues letters of authority to a fiduciary (with a will, executor - without a will, administrator). It then becomes the responsibility of the fiduciary to administer the decedent's estate and to account to the Court for that administration. A fiduciary who fails to perform his or her duties is subject to removal by the Court. The fiduciary, who may be bonded, is appointed according to the decedent's will or by statutory guidelines.

Ohio law sets forth fees for a fiduciary of an estate. The fees may be waived. The fees are as follows:
	4%	of the first $100,000.00 of personal property and real estate sold under authority contained in the will
	3%	of the next $300,000.00
	2%	of the balance
	1%	is permitted on the transfer of unsold real estate

Due to the complexity of the law and the legal problems that may be involved in estate administration, the Court strongly recommends that all fiduciaries seek legal counsel. Good legal advice and guidance can expedite probate, prevent costly errors, and insure that the fiduciary is not cited or sued for mistake or wrongdoing.

Attorney's fees are primarily a matter between the fiduciary and the attorney. Upon application by the fiduciary, the Court will allow reasonable attorney fees to be taken as an expense to the estate.

All attorney fee applications shall be accompanied by itemized time records which shall state the date and time expended, who performed the service, the nature of the service performed, and the hourly rate requested, or the specific basis of the fee requested.

No fee application need be made if the written consents of those heirs-at-law or residuary beneficiaries, whose combined beneficial interests equal or exceed 75% of the net distributable estate, are filed with the Court. Notice shall be sent to those not consenting and whose beneficial interests would be affected. This notice shall be sent by certified mail by the attorney of record, and shall be mailed thirty (30) days prior to the filing of an accounting upon which fees are based. Consents and proof of service shall be filed at the time of the required accounting.

Ordinarily, the average estate should be finalized within six (6) months of the date of appointment of the fiduciary. However, where litigation, federal or state tax returns, or creditor disputes exist, the estate may require a longer administration.

Notice of death and application for authority to administer the estate (probate of will if one exists).
Appointment of fiduciary.
Gathering assets and filing Inventory (Inventory is due ninety (90) days after appointment.
Payment of creditors.
Filing and payment of estate taxes. While estate taxes are due within nine (9) months of decedent's death, there is available one (1) six (6) month automatic extension.
Distribution of assets to beneficiary(s) or heir(s).
Closing the estate and filing a final account (accounting is due six (6) months after appointment).

Where decedent's creditors will not be prejudiced, and the probate estate consists of property less than thirty-five thousand dollars ($35,000.00), the estate may be released from administration. An estate of one hundred thousand dollars ($100,000.00) may be released from administration, if all property passes to the surviving spouse of the decedent. A report of the distribution of assets is filed within sixty (60) days.

No, all assets, probate or non-probate in nature, are subject to Federal and Ohio Estate taxes. From this gross estate, certain items are deductible such as debts, administration costs, and gifts to charities. There are also estate exemptions which are deducted leaving a net taxable estate.

Accounts in decedent's name alone may only be removed by a Court appointed fiduciary. Accounts in the decedent's name and other parties may have 75% of the amount removed by the survivor but the balance may only be removed, except in the case of a spouse, upon presentation of a valid tax waiver.

Will Withdrawing Funds From Joint Bank Accounts Prevent Probate Costs or Estate Taxes?

When appropriate, Ohio law requires proceeds from jointly held bank accounts to be subject to estate tax even if those proceeds have been withdrawn and are held in the name of the surviving party.

An estate where there is no will is generally administered in the same manner as if a will had been probated. However, the decedent's property is distributed according to the Ohio Descent and Distribution Law. If beneficiaries are unknown, the filing of a civil action to determine heirship may be required.

If the will is unclear, a civil action called a will construction must be filed in Probate Court.

Any interested party has the right to contest the validity of the will by the filing of a will contest in Probate Court within three (3) months after a certificate has been filed with the Court evidencing notice of probate to all parties.

The Last Will and Testament of a decedent must be presented to the Court within three (3) years of the decedent's death. If a will is withheld intentionally, negligently, or without some reasonable cause, by any individual, such person may lose their right to inherit. An action may be filed in Probate Court at any time after death of the decedent to require the production of a will. Failure to produce a will upon Court Order may result in the holder being cited for contempt.

Estate problems are brought to the Court's attention by the filing of pleadings which are set for hearing with notice to all interested parties.

Court costs are established by statute in Ohio and the total cost for administering an estate will vary depending on the type of actions and pleadings filed. See Deposits for Court Costs Appendix A.

All property values which are not readily ascertainable, such as real estate, closely held corporation stock, and partnerships must be appraised. The Court will appoint an appraiser to value any real estate.

Legal Practice in the Probate Court is restricted by law to attorneys who are licensed by the Supreme Court of Ohio. If an individual wishes to handle his or her own case, he or she may do so; however, they may not represent others. Due to the complexity of the law and the desire to avoid costly errors, most individuals who have filings before the Court are represented by an attorney. Deputy clerks are prevented by law from practicing law and therefore are limited in the advice they are permitted to give.

Legal practice in the Probate Court is restricted by law to attorneys who are licensed by the Supreme Court of Ohio. If an individual wishes to handle his or her own case, he or she may do so; however, they may not represent others. Due to the complexity of the law and the desire to avoid costly errors, most individuals who have filings before the Court are represented by an attorney. Deputy clerks are prevented by law from practicing law and therefore are limited in the advice they are permitted to give.