An Ohio last will and testament is used to communicate an individual’s wishes for the distribution of their property after death. This legal document allows the testator (the will creator) to specify who’s going to inherit their assets, what those assets are, and who’ll be responsible for settling their affairs and distributing property. By clearly stating their final wishes in a will, testators are assured that their belongings and money will be given to the people or organizations they select and not those decided by the court.
Any person aged 18 or older can create a will if they are mentally sound and not under someone else’s influence. [1]
Holographic Wills – For a holographic will to be valid, it must meet the same execution requirements as a standard will. [2]
Revocation – The testator can revoke a will by physically destroying it. A will may also be revoked by writing a revocation statement or executing a new will. [3] After a marriage ends, any power or assets granted to the former spouse are automatically revoked .
Signing Requirements – A will must be signed by the testator and two competent witnesses who are 18 or older. Each witness must be physically present when the will is executed. [4]
When someone dies testate (with a valid will), the probate court has to verify the legitimacy of that person’s will before any property can be given to the surviving relatives and beneficiaries. The timeline for completing the entire process typically ranges from six months to over a year, depending on the complexity of the estate.
The following is meant to be a general overview of the probate process. It is recommended that executors/personal representatives consult with an attorney if they’re unsure of any step.
Simplified probate procedures are available for estates valued below the legal limits mentioned below. If the estate doesn’t qualify for either of the simplified procedures, a full estate administration will be required.
Probate filings for full estate administration are handled by the executor appointed in the will. The executor’s first task is to present the following paperwork to the probate court in the county where the decedent legally resided when they died:
After receiving the probate filings, the court will issue Letters of Authority to the executor. This document informs others of the executor’s appointment to administer the estate.
Executors often need to purchase a bond as insurance against their potential failure to perform their court-appointed duties. [7] If a bond is required, a Fiduciary’s Bond (Form 4.2) must be filed with the Application for Authority to Administer Estate. However, a bond will not be required if any of the following apply:
If the decedent was married at the time of death, the court will serve the surviving spouse a Citation to Surviving Spouse to Exercise Elective Rights (Form 8.0) and a Summary of General Rights of Surviving Spouse (Form 8.3), notifying them of their right to either “take under” or “take against” the will. [8]
The right to take under or against the will must be exercised within five months of receiving the Citation. If the surviving spouse doesn’t assert this right, the court will assume they agree to take under the will.
Note: The surviving spouse can waive the service requirement by signing a Waiver of Service to Surviving Spouse of the Citation to Elect (Form 8.6), which must be filed with the court when the Letters of Authority are issued.
All parties listed on Form 1.0 need to be notified of the probate case. [11] To fulfill this requirement, the executor must perform either of the following:
After notice delivery or waiver , a Certificate of Service of Notice of Probate of Will (Form 2.4) must be submitted to the probate court. The deadline for filing the Certificate of Service is two months after the date of the executor’s appointment.
Anyone who wishes to contest the will must do so within three months of the filing of the Certificate of Service. [12]
Within three months after their appointment, the executor must take an inventory of the decedent’s assets and provide the court with a list identifying the value of each item. [13] An Inventory and Appraisal (Form 6.0) and Schedule of Assets (Form 6.1) will be used for the evaluation. If the value of any item cannot easily be determined, the executor must hire an appraiser and file an Appointment of Appraiser (Form 3.0) with the court. [14]
Unless the decedent’s surviving spouse (if any) signs a Waiver of Notice of Taking Inventory (found on Form 6.0), the executor will need to serve the spouse a notice detailing where and when the inventory will be conducted. This notice must be served at least five days before the inventory is taken. [15]
Note: All of the decedent’s probate assets, including personal property, bank accounts, and real estate, must be acquired by the executor within six months after the date of their appointment. [16]
An inventory hearing will be held within one month after filing the inventory forms. [17] The executor must provide notice of the hearing to each party listed on Form 1.0 by personally delivering or mailing them a Notice of Hearing on Inventory (Form 6.3) no less than five days before the hearing date. However, no notice is required if the parties sign a Waiver of Notice of Hearing on Inventory (Form 6.2) (also found on Form 6.0).
Creditors have six months after the date of death to claim outstanding estate debts. [18] A creditor’s deadline can be shortened to 30 days if notice is sent by the executor . [19] The executor may pay the outstanding debts after the expiration of the 6-month or 30-day period (whichever applies).
If the executor needs to liquidate personal property to assist in their estate settlement, they must first file an Application to Sell Personal Property (Form 9.0) to ask the court’s permission to hold a public or private sale. [20] Notice of a public sale must be published three times in a local newspaper or posted in five public places during a 15-day period immediately preceding the sale.
Within 30 days after the sale, a Report of Sale must be filed with the court (no state-wide form; see Franklin County version). The Report of Sale must include proof of publication or posting (if a public sale) and a bill of sale signed by the clerk (if a clerk was employed for the sale).
Before liquidating the decedent’s real estate, the heirs and beneficiaries must sign a Consent to Power to Sell Real Estate (Form 11.0). The executor must then file an Application for Certificate of Transfer (Form 12.0) with the magistrate assigned to the probate case. [21] Within five days after filing, the court will issue a Certificate of Transfer (Form 12.1) in each county where the real estate is located.
A federal estate tax return may need to be filed if the value of the decedent’s property surpasses the annual threshold. When required, the estate tax must be reported within nine months of the decedent’s death and then paid before the estate can be settled. Executors must also file and pay the decedent’s federal income tax and state income tax returns.
Note: State estate taxes are no longer required in Ohio. [22]
After collecting assets from the estate, filing an inventory with the court, and paying all debts and taxes, the executor can distribute property to the beneficiaries listed in the will. Any property received or distributed must be documented in a Receipt and Disbursements (Form 13.1).
If any of the probate assets weren’t specially assigned to a beneficiary, the executor must file an Application to Distribute in Kind (Form 10.0) to request permission from the court to distribute those assets. [23] Each beneficiary must agree to the distributions by signing a Consent to Distribute in Kind (included in Form 10.0). If consent is not provided, a court hearing will be held to settle the matter.
The executor must use a Fiduciary’s Account (Form 13.0) to make a Final and Distributive Account that details their distributions. [24] Once the account is prepared, the executor must do the following:
The probate court will hold a hearing for the Final and Distributive Account no sooner than 30 days after the paperwork is filed. [25] At least 15 days before the court date, notification of the hearing must be given to the beneficiaries using either of the following methods:
After the hearing, a judge will sign an Entry Approving and Settling Account (13.3) releasing the executor from their responsibilities.
