Barney DeBrosse, LLC is available to help you administer the estate of a loved one. Whether it is simply ensuring that a will is properly probated or handling probate litigation, having competent and experienced legal counsel not only guarantees that the process is followed correctly, but also allows the loved one to grieve without worrying about legal matters.

Commonly Asked Probate Questions

What is the purpose of Probate?
Probate is the judicial process of aggregating a deceased person’s property, accounting for that property, appointing a fiduciary to administer the property, and distributing the property pursuant to the law or the Last Will & Testament.

What does the Probate Court do?
Probate Court is the court that oversees the Probate process. Probate court, in addition to estates, handles a variety of other matters to include Guardianships, Name Changes, Mental Health Orders, and much more.

Is Probate Required when someone dies?
Maybe. Probate exists to ensure the deceased person’s property is properly accounted for and distributed. If there were no “probatable” property then the Probate process would generally not be required.

Can you withdraw Money from a deceased person’s bank account?
Likely not. If the account was solely owned by a deceased person then the account would need to go through the Probate process to ultimately be transferred. If the account had a transfer on death beneficiary or joint owner it may transfer immediately upon death.

What happens to a deceased person’s bank account?
It depends on how the account is structured. If the account is a non-business, non-trust, and solely owned account without a beneficiary listed then the account must pass through probate.

Should Probate be avoided?
Generally speaking, yes. Probate does have associated costs and fees so avoidance is generally recommended. There is, however, instances where an attorney may advise a client to utilize the Probate process for a particular planning goal.

How can Probate be avoided?
There are generally three ways to avoid probate. (1) Utilize a Trust, (2) place named beneficiaries on all accounts, (3) structure property to have joint owners with rights of survivorship.

Is a will sufficient to avoid probate?
Generally no, as a Last Will & Testament exists to go through the Probate process. A living Trust is normally what is drafted to avoid the Probate process entirely.

What property is subject to Probate?
All assets owned by a person at death are subject to Probate unless the assets have been structured to avoid Probate.

What assets avoid Probate?
Any asset that has a beneficiary designation is owned in Trust, or any asset jointly owned with rights of survivorship.

Can a Fiduciary refuse to pay an estate beneficiary?
No. A fiduciary is obligated to ensure all beneficiaries receive their due inheritance.

How long does Probate take?
It depends on a variety of factors. A rule of thumb is 6 months from when a Fiduciary is appointed but many estates take longer.

Do estate fiduciaries have to give an accounting to beneficiaries?
Yes. State law requires an accounting to be rendered before an estate can close.

Can an executor of a Will spend money out of the estate?
To a certain extent yes. All fiduciaries have certain duties that they must abide by to include paying creditors and taxes. Fiduciaries may utilize estate assets to fulfill their obligations.

Do beneficiaries have to pay inheritance or estate taxes?
It depends on the jurisdiction, in Ohio the answer is no. The beneficiary pays inheritance tax whereas the estate pays estate tax. Presently Ohio has neither. Federally there is an estate tax, however the lifetime exemptions/exclusions are so high most people never have to pay any tax.

Is the executor of a Will entitled to payment?
Yes. In Ohio fiduciaries are entitled by law to what is entitled a Commission. For the first $100,000.00 of an estate the fiduciary is entitled to 4%. Fiduciaries of estates larger than $100,000.00 are entitled to more Commissions on a percentage basis.

How much can a person inherit without paying taxes?
There is no estate or inheritance tax in Ohio, however, federally there is presently (as of 2019) a lifetime exemption of $11,400,000.00.

Is there a tax on gifts?
Yes, however, there is an annual exclusion (as of 2019) of $15,000.00.

Does Power of attorney end at death?
Yes. Powers of attorney do not survive the death of the person who granted the power of attorney.

Who inherits when someone dies without a will?
It depends on the state. Ohio has a specific statute that directs the order of beneficiaries for the fiduciary to distribute. Additionally, the fiduciary may apply to the Probate court for a determination of heirship.

How does a car transfer when someone dies?
It depends on how the car is titled. If the car is jointly owned the BMV has the necessary Paperwork to assist. If the car is not jointly owned nor held in trust the car will likely have to go through the probate process.

Can a fiduciary of an estate sell a car?
Yes. The fiduciary can obtain approval from the Probate Court for authority to transfer a motor vehicle.

What Does the Probate Process Look Like?

  • Application to administer the estate
  • Appointment of the administer or executor
  • Paying Creditors
  • Filing tax documents
  • Distributing assets
  • Filing an accounting

*More information on the Probate Process can be obtained at http://www.franklincountyohio.gov/probate/departments/estate_admin.cfm