When an individual dies, certain assets of the decedent (non-probate) may be transferred by contract, such as joint and survivorship property, payable on death accounts, transfer on death property, and most life insurance and retirement benefits.  Other assets (probate) may be transferred through proceedings in Probate Court.  Most persons die owning both probate and non-probate assets, all of which generally require some type of documentation to complete the transfer.  There are advantages and disadvantages in using non-probate or probate proceedings.  It is prudent to consult an attorney to determine the best manner in which to hold one's assets.

It is the Probate Court's responsibility to ensure the probate assets are collected, maintained, and distributed among the decedent's heirs, beneficiaries, and/or creditors according to the direction of the decedent as expressed through a will and the laws of Ohio.  This process is known as the administration of a decedent's estate.

• 4% of the first $100,000 of personal property, income, and proceeds of real estate sold
• 3% of the next $300,000
• 2% of the balance
• 1% of the value of real estate not sold
• 1% of all property that is not subject to probate administration and that is includable for purposes of computing the Ohio estate tax, except joint and survivorship property.

There is no minimum fee or percentage fee for the attorney.  In Franklin County the fees is primarily a matter between the fiduciary, the attorney, and others affected by the fee.  If the parties do not agree, the reasonableness of the fee is determined by the Court.

Factors considered by the Court include the times involved, the difficulty of the issues, the experience and ability of the attorney, the time limitations imposed by the client, and the amount of litigation which may be involved.

Attorney fees should not be paid until the final account is prepared, unless otherwise ordered by the Court for good cause shown.

Pursuant to statutes and local Court rules, the basic steps of administration are as follows:

• Application for authority to administer the estate and admit the will to probate if one exists;
• Appointment of fiduciary;
• Gathering assets and obtaining appraisals as required;
• Filing the inventory in a timely manner;
• Payment of creditors;
• Filing of estate and income tax returns and payment of taxes, if any;
• Distribution of remaining assets to beneficiaries;
• Closing the estate by filing a final account or certificate of termination in a timely manner.

If the decedent's probate estate consists of property of a gross value less than $35,000, the estate may be released from administration.  When the surviving spouse is the sole beneficiary, an estate of a gross value up to $100,000 may be released from administration.  The release from administration is less complicated and may be completed more quickly than a full administration.

Also available in small estates is a summary release from administration.  The summary release is used for reimbursement of the funeral and burial expenses up to $2,000.  If there is a surviving spouse who is entitled to the entire family allowance, the surviving spouse may use the summary release for estates up to $40,000 plus reimbursement of funeral and burial expenses up to $2,000.

Avoiding probate does not mean avoiding estate taxes.  Only estate which have a net value in excess of $338,000 will be subject to Ohio estate tax.

It is a common misconception that only probate assets are subject to estate taxes.  Non-probate assets such as joint and survivorship assets and trust assets must also be included in the decedent's estate tax return.  In estate tax returns, certain items may be deducted such as debts, administration expenses, and charitable gifts.  In addition, other deductions and exemptions may be available.  Due to increases in exemptions, in excess of 78% of estates will not pay Ohio estate taxes.  In estates exceeding $1,000,000, one should consult a qualified tax advisor concerning Federal estate taxes.