It is important to note that not all of the property owned by a decedent qualifies as probate property.
In Kentucky, the standard court-based probate process begins with the preparation of a Petition for Probate. This petition is usually filed with the District Court of the county in which the decedent lived when he or she died.
The Petition provides the court with basic information about the estate, such as the decedent’s identity and date of death. It also discloses whether a Will exists, the decedent’s next of kin, the proposed fiduciary, and an estimate of the estate property and value.
The process of administering the estate will vary depending on whether the decedent had a valid will and the size of the estate.
Probate process for a small estate
In Ohio, if the decedent’s estate is small enough, the law allows the estate to be probated using a simplified process called “release from administration” or “summary release from probate”.
A Release from Administration is allowed when the assets to be transferred of the deceased’s estate is below court set limits. The small probate process will apply when:
- There is a surviving spouse who inherits all the probate property (either stated in the decedent’s will or if there is no will, by state law), and the assets are under $100,000.
- There is no surviving spouse and the assets are under $35,000
- The process is usually shorter, involves less paperwork, and is less expensive. It usually takes about two to four months, after which the probate court orders the estate assets to be distributed to the people who inherit them.
A Summary Release from Probate is even less burdensome than a Release from Administration. It is applicable when:
- There is a surviving spouse who inherits everything and is entitled by law to a family support allowance.
- The estate is worth no more than $45,000
- There is no surviving spouse and value of the estate is less than $5,000 or the funeral expenses amount to $5,000.
Filing for both release of administration and summary release of administration costs between $110 and $120. Before the court officially issues the Release of Administration, there are four conditions that need to be met.
- The value of the estate meets the required financial limit.
- All of the assets of the estate that qualify for probate are accurately listed in the documents filed with the court at the time of processing.
- All relevant parties, including heirs, beneficiaries, and creditors have received sufficient notice of the application for a Release from Administration and any related hearing.
- The approval of the application does not prejudice or prevent creditors from bringing a claim against the estate at a later date.
What kind of assets qualify for probate?
Assets that qualify for probate are those that are registered in the name of the decedent only. Examples include:
- Bank accounts in the decedent’s name with no co-owner and no beneficiary designation.
- Real estate that is owned by the decedent individually.
- Real estate that is co-owned as tenants in common.
- Stocks and bonds in the decedent’s name.
- Tangible possessions such as clothing, jewelry, household furniture and cars registered in the decedent’s name only.
What kind of assets skip probate?
- Property in a revocable living trust. These are usually designed to avoid probate.
- Assets owned as joint tenant with a right of survivorship. These automatically pass to the surviving owner.
- Assets held by a married couple in tenancy by the entirety. This is available only if the tenancy by entirety was created between 1972 and 1984.
- Life insurance policies and retirement accounts with a designated beneficiary
- Bank accounts with payable on death (POD) or transfer on death (TOD) clause.
- Real estate subject to an Ohio transfer on death “designation affidavit”
Who conducts a probate / estate administration proceeding?
Generally, the person named to serve as executor in the decedent’s will takes charge of the estate. If the decedent died intestate, or the named executor is not available, or willing to serve, the probate court will appoint someone to serve as administrator. If there is a surviving spouse, he or she has first priority to be appointed as administrator.
Once the court issues a document called “Letter of Authority”, the executor’s job consists of proving the validity of the will and settling the estate. The executor must also be careful to record accurately, the details of how the estate assets were handled and distributed.
What is the cost and duration of formal probate?
The cost of formal probate can be really high, which is why so many people take steps to avoid it. In Ohio, the costs commonly include:
- Court costs (usually between $200 and $250)
- Executor or administrator’s fee, which is usually based on a percentage of the value of the probate estate
- Attorney fees
- Appraisal fees
- Federal estate tax (if the estate is large enough)
Most probate proceedings can be wrapped up in about nine months after the executor or administrator is appointed. Creditors have six months to file a claim, so the probate proceedings should last at least that long. If the estate owes state or federal tax, it is likely to last a year or longer.
Contact us for help with your probate and estate administration needs
At Shur Law, we have extensive experience in estate planning, administration and probate. We are able to bring this considerable experience to bear when we handle your case. Every case is unique, and we are dedicated to giving your case the special, personal attention it deserves.
Please call us on 1-513-449-0990 to schedule a consultation.