Issues involving the handling of the affairs and estate of a deceased relative, as well as litigation issues associated with probate and fiduciary matters, in the states of Florida and Ohio, represent a significant portion of the practice of Leppla Associates. The goal is to understand the client’s goals, concerns and need for movement towards closure of such matters.
As attorneys that handle probate, trust and estate planning, we represent clients that range from the most modest of estates to those that are highly complex, either because of the unusual nature of the client’s assets and liabilities, or because of the nature of the client’s business, commercial and other interests. Services in this area of law often include comprehensive review, analysis and recommendations to clients with regard to income, gift and estate tax matters, as well as pre- and post-death personal and administrative aspects of a client’s estate.
Probate
In general, “Probate” involves use of a legal proceeding to transfer certain kinds of property (called probate property) owned by someone who has died (the “decedent”), to ensure that claims, expenses and taxes are all accounted for and properly paid, and to see that the remaining estate is distributed to those entitled to receive it under the terms of the decedent’s will or in accordance with Ohio law.
Probate property consists of all property titled in the decedent’s name and not transferable upon death. It is distributed according to the terms in the decedent’s will or, if the decedent died without a will (called “intestate”), in accordance with Ohio law. A probate proceeding takes place in the Probate Court of the county in which the decedent lived. If the decedent also owned real estate in another state, additional proceedings may be necessary in that state as well.
Probate court involvement is necessary to allow the executor or administrator to have the legal authority to control, safeguard and transfer the assets of the decedent’s estate. Probate also provides a process for the payment of outstanding debts, taxes and the expenses of administration, and for the distribution of the remainder of the estate to the beneficiaries and heirs (which often includes family and friends designated in a will, if a will exists).
Probating an estate requires that a person be appointed to conduct the administration of the estate. If there is a will, this person is usually named in the will and is called an executor. If there is no will or no person is named in the will, this person is appointed by the Probate Court and is called an administrator. The executor or administrator may be an individual, a bank or a trust company.
The executor or administrator manages the following tasks:
- Caring for the decedent’s property;
- Receiving payments due to the Estate, including interest, dividends and other income;
- Collecting debts, claims and notes due to the decedent;
- Determining the heirs and/or beneficiaries, and all necessary information about them;
- Investigating the validity of all claims against the Estate and paying all outstanding debts/obligations;
- Planning for all relevant estate and income tax returns when required, and making all necessary payments;
- Carrying out the instructions of the Probate Court pertaining to the Estate, and distributing the assets of the Estate to the heirs/beneficiaries.
The Probate Court Judge and support staff will supervise the work of the Executor/Administrator. This work may require the preparation and filing of legal documents, providing of notices, attendance at court hearings, securing an estate asset appraisal, filing of an asset inventory, etc. Because of the complexity of these procedures, it is wise to get an attorney’s assistance.
A properly drawn will assures you that, upon your death, your probate property will be distributed as you intended. It is important that you review your will periodically with your attorney in order to keep it up to date. A will is also the mechanism for choosing the executor and commonly provides for the critically important nomination of a guardian where there are minor children. A will also can dispense with the requirement of a surety bond, for which an executor or administrator might otherwise have to pay.
