What is Probate? The Dayton Probate Process
When a loved one dies, their estate often goes through a process generically referred to as “probate”. This is a legal process that involves admitting the deceased person’s will, appointing an executor of the estate, paying debts and distributing assets to the intended beneficiaries. The appointment of an executor (sometimes referred to as an administrator or personal representative) of the estate is necessary so that a person has the legal authority he or she needs in order to deal with the decedent’s assets.
The Probate process guides the executor in collecting all of the deceased person’s assets and then paying valid debts and other costs of administration such as the upkeep of the decedent’s home or business. What’s left is then distributed to the beneficiaries as outlined in the will or if there is not a will, in accordance with Ohio law. The executor, through his or her Dayton probate attorney, is required to file accountings and other documents in the probate court of the county in which the deceased person resided at the time of their death.
In an uncontested estate in Montgomery County it is not typically necessary for the executor, attorney or heirs to attend probate hearings in person. This is also true of the surrounding county probate courts in Clark, Greene, Warren, Darke, and Preble Counties.
The First Part of Probate: Admitting the Will and Naming the Executor
The first thing that must be done in the probate process is filing an application to admit the will to probate and appoint a person (or entity) to have the authority to administer the estate. Generally, the deceased will have named an executer in his/her will. If the person didn’t have a will or didn’t name an executor in the will, then the probate court will appoint someone. In this case, the appointee is usually called an administrator instead of an executor. The executor may be a trust company or a bank.
What the Executor Does
Once an executor or administrator has been named, they have to begin the probating of the estate. This is where a Dayton probate attorney is essential. They will be able to assist the executor with all of their duties. These duties include the following:
- Identifying the heirs at law and/or beneficiaries, including their full legal names, date of birth, addresses, their relation to the decedent, tax ID numbers, etc.
- Making an inventory and collecting of all of the property that is now part of the estate.
- Ascertaining the value of the estate (having real estate and vehicles appraised, finding the value of savings accounts, etc.).
- Collecting all the payments that the estate has due, including rent, dividends, interest, etc.
- Collecting any debts that were owed to the decedent.
- Filing all income and/or estate tax returns.
- Making a list of all claims held against the estate and, if possible, paying them in order of statutory priority.
- Distributing the rest of the estate to the beneficiaries/heirs.
- Completing any other instructions the probate court gives.
Because the executor may need to file a number of different legal documents, and are subject to court-imposed deadlines, having a Dayton probate attorney is very helpful. Unless you’ve done it before, few people realize exactly what goes into an estate and how many tasks there are to be done when in probate.
How Long will Probate Take?
If no estate tax return is needed and there are no holdups with paying debts or collecting money due to the estate, the entire process can be done within about six months. Small estates can sometimes be administered more quickly if heirs and assets are easily identifiable and there are not significant debts. If there are illiquid assets such as real estate, special assets such as an ongoing business, or disagreement among family members, the probate process can take a year or longer.
If you need more information about the probate process and how one of our area attorneys can help, contact us today!