Probate Vs. Non-Probate Assets in Ohio

By Andrine Redsteer

In Ohio, as in other states, certain assets are classified as probate or non-probate property. Non-probate assets are said to pass outside of probate; this means they automatically pass to a joint owner or beneficiary without going through probate administration. Probate assets are subject to probate administration, regardless of whether the deceased, known as the decedent, left a will, known as dying "testate," or didn't leave a will, known as dying "intestate."

Probate With or Without a Will

If a decedent died with a will, the individuals named in the will are referred to as beneficiaries. If the decedent didn't have a valid will at the time of death, his property passes to his heirs at law, according to Ohio's laws of intestate succession. In either situation, a decedent's estate usually must go through probate. In Ohio, however, there are a few exceptions. For example, if a decedent left everything to his surviving spouse in his will and his estate is less than $100,000, probate isn't necessary. Moreover, if a decedent's estate assets are $35,000 or less, his estate is not subject to probate.

Probate Assets

Ohio's probate courts supervise the administration of a decedent's probate estate, which includes all probate assets. A probate asset is any type of property that the decedent owned in his name only. Probate property, such as real estate owned solely by the decedent, is transferred to will beneficiaries or heirs during the probate process. The estate administrator must ask an Ohio probate court to issue a certificate of transfer for each parcel of property; certificates of transfer are then filed with the county recorder where the property is located.

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Joint Tenancies

Ohio is similar to other states in that is recognizes joint tenancies as non-probate property. A joint tenancy is a form of shared real estate ownership whereby two or more people have interests in the same property. Joint tenancies come with a right of survivorship; this means that when one joint owner dies, his interest automatically passes to the surviving owner. Because the interest passes by operation of law, property owned as a joint tenancy is not subject to probate. Joint tenancy property, however, must be recorded by filing an affidavit -- along with the decedent's death certificate -- with the Ohio county recorder where the property is located.

Insurance and Payable-On-Death Accounts

Life insurance policies are contractual in nature and the proceeds are considered non-probate property. If a decedent had a life insurance policy, whoever he designated as beneficiary receives the proceeds automatically -- probate is not necessary. Furthermore, payable-on-death accounts are considered non-probate property. Oftentimes, individuals hold payable-on-death accounts for the purpose of avoiding probate; the assets in these accounts pass directly to the person the decedent named as beneficiary.

Retirement Accounts and Trusts

The funds in retirement accounts are also non-probate assets. For example, 401(k) accounts, Individual Retirement Accounts, or IRAs, and pensions are all types of retirement accounts that are not subject to probate administration. This is because, like life insurance polices and payable-on-death accounts, the proceeds pass directly to the designated beneficiaries. Further, assets held in trusts are also non-probate assets.

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Death Without a Will in Michigan

Under Michigan law, when a person dies without a will, it is said the person died intestate. The law has rules for what happens to a person's property when a person dies without a will. These rules are necessary because there is no will to provide direction as to how the deceased wished to distribute his property. The probate court will distribute property that was not owned jointly, as well as property that did not have a named beneficiary, according to Michigan law.

How to be Assigned as an Estate Administrator

A testator generally names an executor, or personal representative, in his will. However, the probate court overseeing the estate must approve the executor. If no executor is named in the will, the court does not approve the named executor or there is no will, the probate court will appoint someone to administer the estate. This person is known as the estate administrator. An interested party can step forward and request for the court to appoint him as estate administrator. The administrator of a probate estate takes responsibility for distributing the deceased person's property and assets and paying debts and taxes. State laws govern the order in which people qualify to be administrator. Usually, a spouse is first in line followed by children of the deceased. The forms you need to file to request appointment as an estate administrator can vary from state to state.

If Your Spouse Dies With a Will, Does It Need to Be Probated?

Your spouse’s estate must generally go through your state’s probate process regardless of whether your spouse had a will. However, some assets, such as life insurance, can be distributed without going through probate at all. Additionally, most states have a simplified or abbreviated version of probate for estates that qualify.

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