What is “Probate?” If you’ve begun thinking about your estate planning needs, you might think probate is esoteric or, requires a secret handshake to understand. This blog will help demystify the subject of probate and explain the most frequently asked questions. Bear in mind while reading below that this blog is not meant to provide legal advice. Contact an attorney at Baron Law LLC if you are planning for your estate or have legal questions.
When I first meet with clients, many have a negative stigma attached to probate because many believe that probate should be dodged to avoid costs. However, that may or may not be true, depending upon each client’s specific needs and goals.
So, back to the question: What is probate? The Cuyahoga County Probate Court in Cleveland, Ohio provides a legalese-like definition: “[a] probate estate is a legal proceeding provided for by Ohio law to determine the assets of a deceased person who was an Ohio resident at the time of death, the value of those assets, and the distribution of those assets to the persons entitled to them by law.” Webster’s Dictionary would further explain that probate can be used as a noun, verb, or adjective. Put more simply, probate can refer to the act of presenting a will to a court officer for filing — such as, to “probate” a will. But in a more general sense, probate refers to the method by which your estate and finances are administered and processed through the legal system after you pass.
Establishing the validity of a will is usually the first step in the process of administering a “probate estate.” But when I discuss this topic with clients, they are not only thinking about authenticating a will, but are also interested in the entire probate process.
So what happens after you create a will? After you pass, the probate court supervises the transfer of assets which were held in your name only at the time of death. However, the probate court is not involved in the transfer of your assets which were jointly owned “with rights of survivorship.” In other words, assets which had beneficiaries named do not pass through probate. Those types of assets typically pass outside of probate, i.e., directly to the surviving joint owner or beneficiary. Bank accounts and homes owned by husband and wife are typical examples of a joint survivorship; however, exceptions and exclusions apply.
As you can see, determining whether an asset is a probate asset or a non-probate asset (passing through a joint survivorship) is very important in estate administration. During consultation and in preparation for creating a will, I ask my clients to complete a list of all assets owned. This helps the probate court determine which assets must be listed on the inventory which assets will pass directly to a surviving joint owner or beneficiary. Don’t have a will? Not to worry – I ask the same questions and create an inventory from information gathered from family members.
Simply put, the probate process helps you transfer your estate in an orderly and supervised manner. Your estate must be dispersed in a certain manner (your debts and taxes paid before your beneficiaries receive their inheritance, for example). Think of the probate process as the “script” that guides the orderly transfer of your estate according to the rules.
If you would like to learn more about the probate process or have questions, call Baron Law LLC who can help with your estate planning needs. Call today at 216-573-3723. You will speak directly with an Ohio attorney who can help you craft a will, trust, power of attorney and more. Call Dan Baron at Baron Law LLC today for a free consultation.