Probate Law Frequently Asked Questions

What is Probate?

Probate is a court-supervised process for identifying and gathering a decedent's assets, paying estate taxes, claims, and expenses, and distributing assets to beneficiaries. Ideally, the deceased defined their wishes prior to death through estate planning tools such as wills and trusts. If that is the case, the probate will be a relatively smooth and efficient process.

When a decedent owns assets, it is sometimes necessary to undertake a probate administration of the estate. This is true whether the decedent died with or without a will. When there is a will, it is said that the person died "testate." If there is no will, the person is said to have died "intestate." In either case, it is beneficial to seek the assistance of an experienced attorney to oversee the administration of the estate.

Why do I need an attorney?

The services of an attorney are usually required because many legal and procedural issues arise, even in the most basic estate administration. There are many laws and procedures that relate to the probating of estates, and the family should be able to rely totally on the attorney to see that all acts are performed in accordance with the law.

The attorney will represent the estate's personal representative (executor), the person appointed by the court to be in charge of the administration of the estate. The executor has the responsibility of performing all acts necessary in the administration of the estate, which includes identifying and appraising the estate assets, filing an estate inventory, paying the claims filed against the estate, distributing the assets, preparing the estate tax return if necessary, and filing a final accounting. The attorney and the estate representative are paid for their services out of the estate assets. Those fees are set by Ohio Law and must be approved by the court.

Can the probate process be contested?

Yes. An heir to the estate may contest the probate process if they believe they are entitled to a more of the property and assets, or if a new will was recently executed. It is the responsibility of the executor or the court-appointed administrator to defend the estate in probate court. The attorney supporting the executor can assist in the securing the estate as well.

How does a living trust fit into probate?

A living trust is one way you may be able to eliminate the need for probate. Your trust names a replacement trustee at the time of your death. The replacement trustee is instructed by the terms of the trust to distribute the remaining trust assets in accordance with your wishes as described in your trust without a court order.

Review the information on our Web site to learn about the probate and estate planning services we provide to our clients in the counties of Summit, Portage and Medina, Ohio. Please contact us or call us at (330) 785-3337 for more information.