Both late night television and the internet tell people that the only thing worse than dying is going through probate. The truth is not so black and white, especially here in our part of Ohio.
When someone dies, that person is obviously no longer able to make sure that his or her bills are paid or that any assets left after bills are paid will go to whom the deceased person wanted. Therefore, a person’s death may present a prime opportunity for some people to simply steal from the deceased person or otherwise (perhaps even unintentionally) misinterpret what the deceased person intended.
Probate is the law’s way of making sure that the deceased person’s bills are paid and remaining assets go where the deceased person intended.
A way to think about probate is to consider that the person who died will be represented after death by two people. The first person is the probate judge, who is essentially the deceased person’s “brain.” The probate judge oversees the process of paying the deceased person’s financial obligations and moving ownership of the deceased person’s possessions to whomever the deceased person had identified. The judge’s oversight is based upon the best written evidence that the judge has, which evidence is usually the deceased person’s will.
The deceased person’s “arms and legs” in actually moving ownership or possession of the deceased person’s things is the person’s executor (if he or she had a will) or administrator (who is like an executor, if the deceased person did not have a will). The executor or administrator proposes plans for distribution of each asset that a person owned before death, and the probate judge approves those plans or disapproves those plans. Then, with the probate judge’s approval, the executor or administrator diligently distributes assets consistent with the plan.
Two people, a judge and an executor/administrator, working together ensures that nothing is misplaced or conveyed where it should not be. However, that process of checks and balances is understandably not always super-efficient. It takes time for two people to identify what the deceased person owned, value it, and ensure fairness and consistency with the deceased person’s wishes. Communication between executors/administrators and judges is obviously usually done in writing.
Further, as a general rule, going through probate incurs court costs and some appraisals of possessions that might not be necessary outside of probate. Additionally, attorneys’ fees are frequently higher in administering assets through probate rather than through contracts or other non-probate methods. The additional legal fees stem from the extra work required to prepare and file probate documents and ensure that the probate judge and executor/administrator walk hand-in-hand through the bill paying and asset distribution process.
Probate is certainly not bad here in northwest and west central Ohio. Our region’s probate judges are some of the best in the country. Our region’s probate judges and their staffs ensure fairness while helping people navigate the probate process in the midst of dealing with the grief of losing a loved one.
Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at Lee@LeeSchroeder.com or at 419-523-5523. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.