ESTATE PLANNING AND MYTHS ABOUT PROBATE, by J. Michael Nicks, Esq.

Post by: Eric Jones | Posted Date: November 10th, 2014 | Categories: Individuals


Recently, I advised a friend on the passing of her very young husband. They have accumulated a modest amount of assets and neither of them had sought guidance about executing an estate plan. Whether young or old it is best to face the fact that no one here gets out alive. The truth of the matter is that not one of the clients that I have counseled was ready to discuss their own mortality when we began the estate planning process. There is great satisfaction in having those clients thank me later when the advanced planning was put to use. I would like to debunk some myths about probate and offer some suggestions that will make the estate planning process less scary.

PROBATE: Probate is the legal process by which assets are distributed upon death. Probate can be a slow process and while, ideally, the Estate should be wrapped up in six months, it can take longer depending on the facts of each case.

Myth: Probate Court takes a percentage of your estate. This is not true. Probate Court oversees the administration of the Estate process by appointing a fiduciary (Administrator or Executor). When a loved one passes away they are referred to as a decedent by the Court. The decedent dies either with a will (testate) or without a will (intestate). The Estate administration consists of the Executor or Administrator making an Inventory of the assets of the Estate and reporting them to the Court, paying the debts of the Estate, and distributing the remaining assets to the heirs or beneficiaries.

Myth: If I don’t have a will the State gets all of my assets. This is not true. I have heard this many times before. If an individual dies without a will, the assets are distributed according to law. Ohio Revised Code §2105.06 is called the statute of descent and distribution. The Court follows the law and the assets are distributed to the decedent’s heirs at law. Make a Will! By having an Attorney help you create your Last Will and Testament you are able to make specific instructions about the distribution of your assets on your death.

Assets may be transferred outside of the Probate Court’s jurisdiction, commonly called “non-probate assets”. With ever changing rules and regulations more can be done to streamline the transfer of assets on the death of loved one. How to title assets in order to avoid probate is a topic we will pick up next time.

At Jones Law Group, we strive to provide the best legal service with compassion for our clients in every situation. Experiencing the death of a loved one can be one of the most difficult times in a person’s life. We will make every attempt to guide you through this difficult process in safe and understanding fashion.

If you would like to speak to an Ohio estate planning attorney & probate attorney, please contact Attorney Michael J. Nicks at (614) 545-9998.



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