Ohio Probate Law & the Probate Process - Part I

Ohio probate law answers:

This article is one in a four-part series in which we will answer some of the most frequently asked questions about the probate process and laws that we receive at our Dayton, Ohio probate attorneys’ office.

To start the series we’ll answer the following basic questions about probate:

• What is a will?
• What is probate?
• What is an estate?
• What is an executor?
• What is an administrator?

Ohio Probate Law Answers:

What is a will?

A will is a legal document that specifies who is supposed to receive the assets (property, possessions and money) of the person creating the will after he or she dies. Most often, the will is typed up by an attorney and signed by the testator (the person creating the will). However, Ohio probate law also permits a testator to use template wills or write a will themselves. To be valid, a will must be written and signed while the testator, who must be at least 18 years old, is of sound mind and not under the undue influence of another person. The will must also be signed by at least two competent witnesses who must watch the testator sign the will. Interestingly, in Ohio a will does not need to be notarized.

What is probate?

Probate is the process of gathering the assets of a recently deceased person (known as the decedent), paying the decedent’s debts and distributing any remaining assets to the decedent’s heirs. Any assets owned by the decedent at the time of death, but not jointly owned with someone else, must go through the probate process. Assets held by trusts do not go through probate because they are owned by the trust, not by the decedent. Payable-on-death accounts, such as insurance policies and bank accounts with named beneficiaries, go directly to the beneficiaries and do not have to go through probate. However, POD accounts are usually uncovered and processed by the executor or administrator during the probate process.

What is an estate?

An estate is all of the accumulated assets, wealth and possessions of a person at the time of their death. In its broader sense, an estate includes trusts, businesses, investments and insurance policies as well as real estate, cash and physical possessions. For the sake of probate, however, an estate includes only assets owned directly by the individual at the time of his or her death and not those held by trusts or other legal entities. Ohio probate law requires all the assets directly owned by a decedent at the time of their death to go through probate. Assets owned by a trust are handled according to the trust’s terms.

What is an executor of an estate?

An executor is the person chosen by a testator to probate his or her estate. An executor is assigned by the testator in his or her will, but must be approved by the Ohio probate court overseeing probate of the estate. To be approved, the executor must be:

• at least 18 years of age
• competent
• bonded by a private insurance company (usually requiring an excellent credit rating and no criminal record)

Under Ohio probate law, if family members or potential heirs believe an executor is unfit for the responsibility, they may challenge appointment of the executor in probate court.

What is an administrator of an estate?

An administrator of an estate performs the same function as an executor, with a few exceptions. The main difference between and executor and administrator is that an administrator is assigned by the court in circumstances when no will exists. An administrator is assigned under the following circumstances:

• No executor has been named by the decedent
• The named executor is unable or unwilling to serve
• The named executor has been rejected by the probate court

Anyone with ties to the decedent who resides in Ohio can apply to be appointed as administrator of an estate in these circumstances. Oftentimes, an attorney serves as administrator of an estate.

Get more help with Ohio probate law matters:

Gudorf Law Group, LLC, can assist with the administration of the probate process or other matters involving Ohio probate law. Call our Ohio probate attorneys at 1-877-483-6730 to schedule a free consultation.