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Our office gets flooded with phone calls regarding information on the Probate Court, and we have recently seen the volume of these calls increase. Often, we receive a call from a potential client explaining that a loved one died and they called the Probate Court and the clerk has stated that they need to file paperwork with the Probate Court.
Many potential clients ask “what is probate, and why do I need to file paperwork with the Probate Court?” This simple question has a complex answer. To break it down for clients, we explain why we need to file a case with the probate court and the process.
Probate Court is a specialized type of court that deals with probate law. In its most basic definition, probate law is the legal process of distributing certain types of property owned by the deceased and to ensure that their assets are transferred. This legal process helps distribute the assets of a person who passed away.
Probate cases are necessary because commonly, there are assets in the descendant’s name that require transferring to the beneficiaries. Probate judges choose the executor or personal representative and help the court supervise their decisions.
How the process occurs depends on the amount of the assets, who the beneficiaries are, and if there is a Will. It also requires verification that the will is valid; the gathering of assets and paying of any valid claims, taxes, and expenses of the estate; and distributing the remaining assets to the beneficiaries.
Probate is required when there are assets still in the deceased person’s name and no beneficiary is listed on them.
A lot of clients do not realize that there are multiple kinds of probate cases. One example could include when a person becomes incapacitated and does not have a powers of attorney in place.
In a case like this, a loved one must file guardian of the incapacitated person. Living wills and revocable trusts may also have authorities that go into effect when someone becomes incapacitated.
One of the biggest questions we hear from clients is how to avoid probate. Avoiding Probate can be an easy process, but it depends of the types of assets we are trying to protect.
If a person has a savings or checking account, a client can contact the bank to make sure there is a beneficiary to their accounts. There are some circumstances, however, in which a beneficiary cannot be named on an account. If this is the case, on the account holder’s date of death, we will have to look to this person’s will. If there is no will, then we will need to look to the Ohio Laws of intestate succession.
A lot of clients use search engines to see how to avoid probate, but this might not be the wisest decision since avoiding probate is a very specific process and varies by state. Different states require different information, and search engines might not be able to provide enough specificity of information.
Having a consultation at our office to make sure we have the proper estate planning in place for a client is the most efficient way to avoid probate. A consultation will help determine how to organize trusts, power of attorney, and wills in order to make the best out of a client’s retirement account(s), real estate, life insurance, and the estate taxes within each state’s laws.