Tuesday, April 01, 2014

Probate in Ohio—Elder Law

The executor or administrator takes care of the following tasks:

  • caring for all property of the decedent;
  • receiving payments due the estate, including interest, dividends and other income;
  • collecting debts, claims and notes due the decedent;
  • determining the names, ages, addresses and degree of relationship of all heirs;
  • determining the names, ages and addresses of all beneficiaries, if there is a will;
  • investigating the validity of all claims against the estate and paying all outstanding obligations including federal, state and local estate and income taxes;
  • planning for federal and state taxes and preparing and filing estate tax returns when required;
  • carrying out the instructions of the probate court pertaining to the estate and distributing the assets of the estate to the heirs.

The probate court judge and support staff supervise the work of the executor or administrator.

These actions may require the preparation and filing of numerous legal documents, the provision of notices, hearings in court, an appraisal of the assets of the estate, an inventory of the assets, completion of final income tax returns and possibly gift and estate tax returns, an accounting of funds, final transfer of all assets to beneficiaries, termination of the probate proceeding, and discharge of the executor or administrator by the probate court. Because of the complexity of these procedures, the assistance of an attorney usually is needed.

If the total value of all property in the decedent’s individual name is $35,000 or less, the estate can be relieved from some of these administrative requirements. Where the decedent’s spouse is entitled to receive all of the estate’s assets, the amount that can be relieved from formal administration is increased to $100,000.

Non-probate assets include: insurance policies, IRAs and pensions that are payable on death to a beneficiary; and a home, car or bank account that the decedent owned jointly with rights of survivorship. In many cases, the bulk of a decedent’s assets may be non-probate assets. The administrator must identify non-probate assets for tax purposes, but these assets are not otherwise included in the estate for which the administrator is responsible.

Duties of the Executor

What are the duties of an administrator (executor)?

The basic duties of an administrator and an executor are:

1. Inventory and appraisal. The administrator must identify and determine the fair market value of all financial assets and property that were owned by the decedent at the time of death.* The administrator must file an inventory listing all of the decedent’s probate assets and their date-of-death values with the probate court within three months of the administrator’s appointment, unless an extension is granted.

If the value of an asset is “readily ascertainable” (for example, shares of stock in a publicly traded company or the balance in a bank account), then no professional appraisal is required; however, items such as jewelry, art objects, antiques, real estate and any other possessions whose value cannot be readily established must be appraised by a qualified person.

2. Collecting assets. The administrator must collect all assets of the decedent. This is very important (especially to prospective heirs) because it is these assets that will be distributed to the heirs after debts and taxes have been paid. Complications can arise in this process if assets legally owned by a decedent are in the possession of someone else at the time of death, or if property belonging to the decedent has been concealed or misappropriated by a third party. [. . .]

3. Payment of debts and expenses. Creditors (people to whom the decedent, or his or her estate, owe money) have six months from the date of death to present their claims against the estate. In most cases, any claim not submitted within six months is barred forever. Claims must be in writing and sent directly to the administrator or mailed to the decedent’s address, and must be received by the administrator within six months. In addition to ordinary bills the decedent owed at the time of death, other debts typically include expenses to keep up property; local, state and federal taxes; hospital and funeral expenses; and expenses of administration including probate court costs, bond premiums and fees charged by appraisers, attorneys and the administrator. [. . . ]

4. Distribution of assets. When all debts, taxes, costs and expenses of the estate have been paid, the administrator must distribute the balance of the estate to the decedent’s heirs according to a strict formula spelled out in Ohio’s statute of descent and distribution. Because an administrator may be held personally liable for an error or excess distribution to an heir that cannot later be recovered, legal advice should be obtained before making a final disposition of estate assets. Sometimes an administrator will make a partial distribution of certain assets before all claims have been received. In such cases, it may be prudent to advise persons receiving early partial distributions that they may be required to return money or property to the estate if it is needed to satisfy valid claims.


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