Addressing end-of-life issues doesn’t seem pleasant. Understandably, you wish not to think about your mortality. You might find it difficult and awkward to concern yourself with the debts and property of a loved one that is deceased.

An experienced, professional estate planning attorney can guide you in ordering your affairs and easing the burden of those who must carry out your wishes. Should you assume the job of looking after another’s estate, you can find help from a probate and estate attorney in handling the legal issues that may arise.

What is Estate Planning and Probate Law?

At its essence, estate planning refers to how your affairs will be handled at death. Traditionally, this means the preparation of your Last Will and Testament. In it, you decide who will inherit your property at your death and appoint someone to settle your estate. Other methods that an estate planning attorney may suggest for handling your property include a trust that names your beneficiaries at death, a life insurance policy and even a gifting plan during your life.

A probate and estate attorney in Kent can also help you address what happens to you or your property should you no longer be able to make those decisions. Diseases and other conditions, whether the result of aging or traumatic events, may require someone to handle your bank accounts, property maintenance and upkeep, and/or health care decisions. With the consultation of a lawyer, you may consider whether your physicians should continue life support or feeding tubes if those are the only ways to keep you alive.

An estate planning attorney in our firm handles the following items in estate planning and probate law:

• Wills
• Living Wills
• Trusts
• Healthcare Directives
• Eldercare
• Powers of Attorney
• Estate, Trust, and Probate
• Administration

Probate and Estate Administration

Probate of an estate encompasses the settlement of the decedent’s estate. If you become tasked with settling the estate, you will have to see that the decedent’s debts are paid and property distributed according to the wishes of the decedent.

When is Probate Required?

Certain estates can avoid probate altogether. Specifically, if a decedent’s estate has less than $5,000 in value or less than the funeral bills; probate is not required if someone other than the surviving spouse pays the funeral bill. For a surviving spouse who pays the funeral bill, probate may be avoided if the estate has no more than $45,000 in assets and the spouse is the sole beneficiary.

A simplified process is permitted for any estate with a value of no more than $35,000, or for an estate of no more than $100,000 where the surviving spouse is the sole heir under state law or sole beneficiary in the will.

Even if you or someone else must administer an estate, not all of the property held by the decedent comes into or is passed through the probate process.

Beneficiaries Named By Contract

Probate does not apply where the decedent names a beneficiary to particular types of proceeds unless the beneficiary is the decedent’s estate. Typically, these contracts include life insurance, annuities, retirement plans, and financial accounts which name a person to be paid upon death. An estate planning attorney in Kent can explore the options of assets or titling property so as to minimize probate if that is your concern.

Trusts

With a trust and estate lawyer in Kent, Ohio, you may be able to shield your property from probate through a revocable living trust. With this mechanism, a trustee holds the legal title to assets such as land, cash, and securities for your benefit. If you die before you revoke the trust and assume the legal title, the terms of the trust determine who receives the remaining property in the trust.

Right of Survivorship Property

In a joint tenancy with right of survivorship, two people (who can be married or unmarried) hold property together. Upon the death of one owner, the survivor becomes the sole owner. Formerly, Ohio law recognized tenancies by the entirety, in which the surviving spouse would be the sole owner. Although tenancies by the entirety no longer exist, such are still recognized if the instrument creating one is dated between February 9, 1972, and April 3, 1985 (inclusive).

Transfer-on-Death Products

You may keep land, accounts, vehicles, and other property outside of probate by naming in the instrument the owner upon your death. Such a transfer-on-death affidavit would take effect only if the maker owned the property at death. It does not prevent the person making the affidavit from transferring it during his or her own life.

What Happens in Probate?

Appointment of Administrator or Executor

Probate begins with the qualification of a person to have authority to settle the estate. If the decedent left no will, an administrator is appointed according to a priority set by the estate administration law. Normally, the spouse occupies the first place in that order, followed by the decedent’s children or other next-of-kin. Where the decedent had a will, the probate court looks to the person named in the will as executor or executrix.

Determining if the Will is Valid

The executor or executrix brings the will forward for probate. In this process, the court determines the validity of the will by examining whether it has properly been signed and witnessed.

Beyond the formalities, disappointed family members or heirs may challenge the will through a lawsuit. If you believe the will does not reflect the decedent’s wishes, a probate and estate attorney can raise as grounds for contesting the will that it was signed under duress or that the decedent did not understand what he or she owned or to whom he or she was leaving it. Evidence of the mental incapacity or lack of voluntary action may include medical records of the decedent’s mental condition at the time the will was executed.

Gathering the Assets

To properly distribute the decedent’s property, you as the personal representative must know what and where the assets are located. You will need to find the deeds, car titles, bank and other financial records, and/or personal property. With this information, you prepare an inventory of the decedent’s property. Your care of the property may include keeping insurance until you can sell it, securing the home, and obtaining any necessary repairs. Appraisers can fix the value of anything you are directed to sell.

Handling the Decedent’s Debts

If you are the personal representative, you also need to comb through credit card statements, hospital bills and other documents that identify the decedent’s creditors. This enables you to notify these creditors of the deadline to submit claims to the estate. Handling debts means, in addition to paying taxes and debts, rejecting tardy claims or those that lack validity.

What Are the Costs of Probate?

Your goals in estate planning might include the avoidance of the costs to your estate associated with probate. Probate court costs in Portage County (Kent) and other Ohio counties typically begin at a minimum of $200.00. Depending on the complexity and size of the estate, your estate may have to pay for appraisers, auctioneers, and lawyers — especially if heirs or others contest the will. Unlike many areas of law, you usually do not pay the lawyer upfront. Instead, legal fees for administration of the estate come out of the estate itself.

How Can an Estate and Probate Lawyer Help

Ensure Documents Are Properly Prepared and Executed

The law of wills and estate planning requires many formalities. After all, documents such as wills, powers of attorney, advanced directives and living wills express your wishes when you die or become incapacitated. Further, in your estate planning, you may have to consider how to leave property to minors or giving someone the authority and responsibility for selling your property. A trust and estate lawyer carefully drafts documents and has the staff to witness and otherwise ensure their due execution so that your wishes can be realized.

Handling the Complex Issues

If you serve as a personal representative, you face potentially complex or intricate legal issues about property ownership, will execution, the validity of claims, and distribution. These questions may include minor beneficiaries, for which the expertise of a trust and estate lawyer may answer. Also, estate attorneys can prepare or oversee the record-keeping of transactions involving the estate and its assets.

Contact Us

Peter C. Kratcoski is an experienced estate planning attorney who handles wills and estate planning and administration of estates. His areas of practice also include domestic cases, commercial and residential real estate, landlord-tenant law, personal injuries and civil litigation.

Peter joined the firm in 1988, following his graduation that year from The Ohio State University College of Law. In 1985, he earned his B.A. in Political Science from The Ohio State University.

Since 1989, Peter has shared his legal expertise and knowledge as an adjunct professor at Kent State University. Among other subjects, he teaches probate and estate law and civil litigation. If you need help with wills and estate planning or administering the estate of a loved one or friend, contact Peter C. Kratcoski for consultation and representation. Contact our firm.