Madeira Probate Lawyers

Probate is the legal process of validating and administering a will or estate. It is the responsibility of the executor to initiate it on behalf of the decedent by filing the will with the probate court to be validated and authenticated.

Probate can be complex and challenging, and without careful planning, it could cost your loved ones time and expense, and you are at risk of not inheriting your assets after your passing. Probate becomes more complicated when the decedent fails to make a will or has an invalidated will. In such instances, the probate court oversees executorship duties and determines how assets are distributed.

Is Probate Required?

Probate is not required in every situation, though there are certain circumstances in which the process may be unavoidable, such as:

Lack of a formal will.
Non-legally binding will.
No executor or beneficiaries are named in a will.
No assets assigned to beneficiaries.
Assets are only in the deceased’s name.
Real estate is part of the estate.

When such issues arise, probate is required for heirs to access and take possession of the deceased’s assets.

Who Is Involved in Probate?

Probate involves several participants with specific functions and responsibilities, including but not limited to:

The executor named in the deceased will be responsible for the estate, including settling outstanding debts and financial obligations, distributing assets, and submitting tax returns.
Beneficiaries named by the deceased and assigned inherited assets in the will, typically spouses, children, other family members, friends, and charitable organizations.
Heirs are legally entitled to inherit property or assets, usually close relatives, based on the state intestate succession laws without a valid will.
Creditors are entitled to file claims against the estate to recover any of the decedent’s outstanding debts.
Guardians in the will are responsible for caring for the deceased’s minor children or dependents.
Probate appraisers are hired or appointed to evaluate non-cash assets, such as real estate or valuable personal items.
The probate court, responsible for supervising the probate process, ensures the deceased’s wishes are honored and debts are settled per state laws.
The deceased’s attorney assists and represents the executor while settling the estate. Attorneys representing heirs or creditors may also be involved.

How Does Probate Work?

Each state has specific rules regarding probate, but generally, the process involves the following steps:

Initiate probate: Probate is initiated by filing a deceased’s will, death certificate, and other required documents with the court, which will examine the will and its validity.
Appoint the executor: The court appoints an executor or estate administrator named in the will to oversee the probate process. If no executor is named in the will, the court appoints someone as executor.
Identify assets: The executor identifies the deceased’s assets.
Value assets: When necessary, a valuation expert will be enlisted to determine the total value of the estate and estate taxes.
Notify creditors: Notification is provided to the deceased’s creditors who may have claims against the estate for outstanding debts.
Notify beneficiaries: Named beneficiaries and others are notified of potential inheritance.
Settle debts: The executor pays the decedent’s debts from the estate.
Distribute remaining assets: The decedent’s will distributes any remaining assets to beneficiaries.
Close the estate: Once all obligations are fulfilled, the court officially closes the estate.

The process is similar without a will. However, the court appoints a personal representative to serve as executor. It is distributed according to intestacy laws, ensuring it is distributed to close family members, such as spouses or children.

Can Probate Be Avoided?

Through careful planning, you can help your loved ones avoid probate after your passing with several alternative methods of transferring your assets, including:

Living trust: A living trust allows you to pool assets and appoint a trustee to distribute them directly to your beneficiaries from the trust without probate.
Joint ownership: Assets you co-own automatically transfer your share to the other as a “right of survivorship” following your death without going through probate. There are different types of joint ownership, such as:
- Joint Tenancy With Right of Survivorship (JTWROS): The surviving owner immediately inherits the deceased’s portion of the assets, common in marriage with co-owned property, such as houses and bank accounts.
- Tenancy by the entirety: Exclusively for married couples, the surviving spouse inherits the deceased’s share of the property and adds protection against creditors.
- Community Property With Right of Survivorship (CPROS): In Ohio and some other states, CPROS ensures that community property is transferred directly to the surviving spouse but does not provide creditor protection.
Pay-On-Death Account (POD): A type of bank account with a named beneficiary entitled to claim the account’s assets directly following your death.
Transfer-On-Death Account (TOD): TOD accounts include stocks, bonds, and mutual funds, which the designated beneficiary inherits directly without probate.
Life insurance: Beneficiaries designated in your life insurance policy can receive the funds directly and avoid probate unless the estate is the named beneficiary.
Retirement accounts: Funds in your IRA, 401(k), and other retirement accounts are transferred directly to the named beneficiaries without passing through probate.

The easiest way to avoid probate is to give your assets away before death. However, depending on the asset’s value, there can be potential tax implications. Per law, you can gift a single individual up to $17,000 in cash or property without the recipient owing gift tax.

An experienced Madeira probate lawyer can help you identify methods of transferring most or all of your assets outside of probate to spare you and your loved ones the time-consuming and costly probate process.

Are Any Assets Excluded From Probate?

Although most of your estate must be probated, there are exceptions, including joint bank accounts and real estate, retirement plans, annuities, pensions, assets in trust, and any assets with designated beneficiaries.

How Long Does Probate Take?

Probate requires at least six months, during which creditors are permitted to file a claim against the estate. Most probates conclude within nine months to one year, though complicated estates or cases involving someone contesting the will can extend beyond one year.

Do I Need a Probate Lawyer?

You are not required to hire a probate lawyer, but handling the legal requirements and paperwork can be challenging without legal counsel. Without guidance from a probate lawyer, you risk serious delays, more expense, and potential loss of assets.

At Wolterman Law Office, our experienced Madeira probate lawyers will protect your estate and interests and represent your executor or trustee throughout the probate process. We provide crucial support following a loved one’s death and handle all aspects of administering the estate to alleviate any undue burden.

Our Madeira Probate Lawyers at Wolterman Law Office Represent Estates During Probate

Probating an estate can be a time-consuming and difficult process that, if not handled properly, can cost your heirs additional expense and potentially lost assets. Our experienced Madeira probate lawyers at Wolterman Law Office can help you establish an airtight estate plan, ensuring your wishes are carried out exactly as planned. Call today at 513-488-1135 or contact us online to schedule a free consultation. Located in Loveland, Ohio, we serve clients throughout Hamilton County, Fairfield, Norwood, and Forest Park.