Life insurance payouts and financial instruments (including bank accounts, individual retirement accounts, retirement plans and institutional accounts that are "payable at death") avoid probate as long as a beneficiary is named in the policy or contract and that beneficiary is someone other than the deceased or the deceased's estate and who survives the decedent and is not incapacitated. Instead, the money passes directly to the named beneficiaries.

When going through probate, an estate's real property or real estate is distributed to heirs by the probate court as proscribed by the deceased's will. If there is no will or the will is determined to be invalid, the court will distribute the real estate according to the dictates of Ohio probate law. The Ohio probate attorneys at Gudorf Law Group emphasize that leaving real estate to go through probate runs a significant risk of the property not going to the heirs you intended because someone may contest your will or state law may not grant it to the people you thought would receive it. Moreover, probate subjects the property to the claims of creditors.

There are three ways to likely keep real estate out of probate under Ohio probate law:

Create a revocable trust and title the real estate to the trust — this avoids probate because the real estate is owned by the trust, not the person, and follows the rules of the trust. In essence, the real estate does not get handed down to anyone because it's owned by the trust and therefore does not have to go through probate.

Title the property to two people with rights of survivorship — When two people own real estate jointly with rights of survivorship (known as joint tenancy), the real estate automatically passes to the surviving owner and avoids probate. However, there are many potential pitfalls with joint tenancy that can leave the surviving owner vulnerable to avoidable taxes and other headaches.

Title the property as TOD" or transfer on death. Once again, there are many reasons not to use a TOD designation.

Ohio probate law requires any property owned by the decedent alone at the time of death to go through probate if it is not jointly owned with survivorship rights, titled to a trust, or have a beneficiary designated.

Even if you have a will, property titled to you will go through probate and the estate will be distributed to your heirs according to either your will or state law. Only assets that have a designated beneficiary, are owned jointly with rights of survivorship, or are titled to a trust will avoid probate, according to the Dayton, Ohio probate attorneys at Gudorf Law Group.

Ohio probate attorneys frequently get asked by clients to explain what 'incapacity' means. This is a common question because many power of attorney documents, living wills and revocable trusts have powers or provisions that become active when the creator is determined to be incapacitated.

Living probate is a court proceeding to determine whether an individual is incompetent of handling their personal care and financial resources and assigning guardianship over the person and/or estate if they are found incompetent. The intent of these proceedings is to protect a person's welfare and financial affairs when they are unable to do so themselves.

In Ohio, probate court commonly appoints a guardian for minors who have no parents and adults who are mentally incompetent or rendered incapacitated by illness or injury.

Challenging a will usually occurs when a family member of a deceased person believes the will does not reflect the true wishes of its creator or is otherwise invalid. Sometimes the challenger contests the will with a motive for selfish gain, but more often it is because they believe the creator did not have sufficient mental capacity when writing it or was under the undue influence of a selfishly motivated individual.

Probate of an estate often raises many questions. In this post, I’m going to answer the four most commonly asked questions about the probate process. First, though, a brief explanation of the process . . .

Probate begins when a Ohio probate lawyer, hired by the decedent’s heirs, files the person’s last will and testament with probate court. This opens the case. Then the Ohio probate attorney begins identifying and collecting the decedent’s assets and identifying the decedent’s legitimate creditors. Then creditors are paid from the assets, as are any estate or gift taxes that are due. Any assets that remain are then distributed to the decedent’s heirs according to instructions in the will and Ohio probate law.

Revocable trusts and the assets they hold are less secure against lawsuits or nursing home expenses than irrevocable trusts because the trust creator has the ability to revoke the trust and regain ownership of the assets it holds. As a Dayton trust attorney I often get asked, “Why use them at all? “

The simple answer is that they achieve three primary asset protection goals while allowing the trust creator (or grantor) to control the assets and change the trust’s beneficiaries and terms. An irrevocable trust cannot be changed once it is set up.

3 Estate Planning Objectives Achieved Through Revocable Trusts

Let’s look at these in more detail . . .

Ohio probate court costs can be minimal when an estate is contained in trusts. Probate court becomes involved whenever a person dies and they have left a will that needs to be executed or they have left an estate or some part of their estate that is not covered by a will or trust of some kind. When a will and/or estate goes into probate, things can get very complicated and expensive. For this reason, many people turn to their Ohio probate attorney for solutions that keep their estate out of probate.