First- Determine if You Need to File Probate:
Probate Defined:
Let’s define probate before we dive into this topic.
Probate is the process surviving family members use to submit a will, transfer assets, and close out the remaining personal and financial affairs of their deceased loved one after he/she passes away. For about 30%* of all estates, the probate process involves court administered proceedings for paying debts and transferring assets of the estate (i.e. Court Probate). However, for most estates, the probate process does not involve going to court or filing court documents. For about 70% of all estates, probate is performed outside of court and is focused mainly on notifying various agencies/associates and transferring assets to beneficiaries/heirs named in the will or on the asset titles (i.e. probate).
*Based on an assessment of number of estate cases filed in Ohio during 2017-2019 vs. number of deaths recorded.
The Will- What’s the Impact?
Contrary to popular belief, having a will does not have any effect on whether or not you must have a court administered process of transferring assets (i.e. Court Probate). Having a will mainly impacts the type of documents you need to file in court and in some circumstances, the type of Probate for which you file. In some probate courts, there are up to five types of probate for which you can file (from Summary to Full Probate).
If there is a will and it appears valid, you should file the will with the county probate court as a precaution. Most probate courts require that if there is a valid will, it should be filed with the probate county court within 10-90 days (1) after the date of death, otherwise, there may be penalties, including civil or even criminal.
In Ohio for instance, if you are a named beneficiary in the will, but fail to file the will with the court within a year after the date of death, you could be excluded from receiving any of the assets. Some courts have the option to file a will for record only vs. filing a will for probate. If none of the assets require court administration/approval to get distributed or transferred, you should still considering filing the will with the court by filing an Application to Probate a Will or application to file a Will for Record Only. If you choose the former and there are no estate assets, you would just document as such in the application.
The Assets- How They Are Titled Is the Determining Factor for Filing Court Probate
Before you decide whether or not you are going to file probate in court, you will first need to have an idea of the assets owned by the deceased and how those assets are titled. The way in which an asset is titled effects whether or not the asset is owned by the “estate” or is considered a “non-estate” asset. Estate assets are those that must be transferred through the Probate Court and include, but are not limited to, bank accounts, real estate, automobiles, and personal items that are titled solely in the name of the decedent. Note that a jointly held asset may still be considered an estate asset if the title did not include rights of survivorship or transfer on death designation. The portion of the jointly held asset that was owned by the decedent (most often it is 50%) would be considered an estate asset.
Non-estate assets are those that can be transferred outside of Probate Court and include but are not limited to, jointly held bank accounts with rights of survivorship, life insurance policies with a designated beneficiary, real estate that is jointly held through a survivorship deed or under a transfer upon death designation, or assets held in a trust. Non-estate assets must have a person/trust assigned with rights of survivorship or transfer on death on the title and/or a beneficiary needs to be name on the account or policy.
Second- What Happens if You Need to File Probate and Don’t?
Now that we have clarified the difference between an estate asset and non-estate asset and defined Court Probate vs. probate, we can answer the question, “What happens if no probate is filed?”
The simple answer is, if there are estate assets, then the only way to legally transfer these assets is to file Court Probate. If no Court Probate is filed, the estate assets will never be able to be legally transferred to the designated beneficiary/heir. For example, if there is a bank account and there was no co-owner listed on the bank account or there was no transfer on death or right of survivorship beneficiary listed on the account, you will not be able to legally get access to the money in the account without filing Court Probate.
Filing Court Probate also provides protection to the beneficiaries and heirs against creditors/collections agencies because the way assets are distributed is approved/signed off on by the probate judge. In essence, the judge has approved the order in which assets are distributed and debts are paid. If there are more debts than assets, the judge will determine which debts get paid first, and in many cases, the first debts are those incurred by the funeral and family allowances. (See an example of the order in which debts get paid for Ohio Probate Cases (i.e. debt classes) here.) Even if there are unpaid debts/creditors, as long as the judge has approved the debt classes, the assets distributed are safe.
Additionally, if you foresee issues arising with heirs/beneficiaries or family members that were not named in the will but believe they should receive assets, this may also be a reason to go through Court Probate and hire an attorney to help mitigate future legal issues and lengthening the amount of time it takes to close out the estate.
Want More Help?
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