If you recently lost a loved one, a complicated legal process is the last thing you want to face. Yet after a death, that is often exactly what an Ohio family must deal with — court filings, inventories, notices to creditors, and months of waiting before anything is distributed.
The good news is that probate is largely avoidable. With planning, most of what a person owns can pass directly to the people they chose, without court involvement at all. Below is how the probate process works in Ohio, and the specific tools an estate planning attorney uses to keep assets out of it.
What Is Probate, and Why Avoid It?
Probate is the court-supervised legal process of settling a deceased person's estate. It consists of validating the will, appointing an executor, paying final debts and estate taxes, and distributing what remains.
Probate serves an important purpose, and it's not meant to be punitive for families waiting for estate disbursement. However, it's generally best to avoid probate when possible, as it can be an expensive and time-consuming process. An Ohio estate planning lawyer can use estate planning tools like trusts, beneficiary designations, transfer or payable-on-death designations, and other asset management strategies to minimize the assets that will pass through probate.
How does an asset end up in probate? If someone dies without a will, they die intestate, and are subject to Ohio intestacy statutes. These state regulations decide who inherits what; this is done under probate court supervision, and might not be what the surviving family expects. Many people learn about probate only after a loved one's estate has been turned over to state intestacy proceedings—and by then, of course, it's too late to avoid.
One final note on probate and why you may want to avoid it: probate in Ohio is public, which means information about your family's private matters may be exposed to public scrutiny. The process can take months, or even years to resolve, and carries court costs, attorney fees, and executor fees that come out of what the heirs receive. It is not inherently harmful, but for most families there is no upside to routing assets through it.
To learn more about probate and how an estate planning attorney can help streamline the process call RKPT for a free consultation: (513) 721-3330.
4 Ways to Avoid Probate in Ohio
Probate only governs assets that have no other way to transfer; anything with a named recipient or a surviving co-owner passes outside the estate automatically. To that end, here are four common ways to ensure that your estate is distributed outside the probate process:
1Use Beneficiary Designations
Beneficiary designations are the simplest tool and the most commonly neglected. A retirement account (a 401(k), IRA, or pension) passes directly to whomever is named on the beneficiary form, as does a life insurance policy. These transfers happen by contract, not by will, which means the beneficiary form controls even if the will says something different.
“Payable on death” (POD) is a common designation with checking and savings accounts, as well as other liquid retirement assets. A simple POD designation, which generally requires just a single piece of paperwork, allows you to name a beneficiary to receive the sum of that asset after your passing.
“Transfer on death” (TOD) designations follow the same basic process, only the title of the asset, not just its value, will be transferred to a beneficiary. This is used for things like brokerage accounts, real estate, and vehicles. If you register an investment account as TOD, the beneficiary will automatically inherit the account upon your death and the asset will not pass through probate.
In all but the rarest of circumstances, beneficiary designations, including POD and TOD assets, will not need to pass through probate court. However, be sure to regularly update your beneficiary designations; documents made a decade ago may still name an ex-spouse, a person who has since died, or no one at all. When a form is blank or outdated, the asset falls back into probate: the exact outcome your designation was supposed to prevent.
2Establish Joint Ownership
Joint ownership with survivorship rights is another automatic transfer. When property is titled as a survivorship tenancy — what you may hear referred to as joint tenancy with rights of survivorship — the surviving co-owner takes full title the moment the first owner dies. No court order is required. This is why married couples who own their home and bank accounts jointly do not go through probate when the first spouse passes; the surviving spouse simply records an affidavit and a death certificate, and ownership is complete.
Joint ownership is not risk-free, however; adding an adult child as a joint owner to a bank account exposes that account to the child's creditors and divorce, can create gift tax reporting issues, and may unintentionally disinherit your other children (the survivor keeps the whole account regardless of what the will says). For anything beyond convenience accounts, holding property in a trust, as we explain directly below, is usually the cleaner answer.
3Create a Revocable Living Trust
One of the easiest ways to avoid probate is by using a trust; this creates a separate legal entity that owns your assets and is managed by a person of your choosing (called a “trustee”). By naming yourself as a trustee, you can manage your assets while living with the knowledge that your estate will be managed appropriately after your death.
A revocable living trust is the most comprehensive way to avoid probate. You create the trust, retitle your assets into it, and name yourself as trustee — so you keep full control and can change or revoke the trust at any time during your life. Unlike probate, a public process, assets distributed through a trust are not public record; they remain private, and are thus not subject to probate court review.
When you die, the successor trustee you named steps in, pays final expenses, and distributes trust assets according to your instructions. There is no probate filing, no court supervision, and no public record. For families with real estate in more than one state, a trust also avoids a second probate proceeding in each state where property is located.
A trust is only as good as its funding. A trust document that was signed but never had the deed, the personal property, or the accounts actually transferred into it does not avoid anything.
4Take Advantage of Ohio's Small Estate Procedures
Even without planning, some estates avoid full administration. Ohio offers two simplified procedures:
$35,000
Release from administration is available when the estate's assets are $35,000 or less.
$100,000
The release threshold when the surviving spouse inherits everything, either under the will or by law.
$40,000 + $5,000
Summary release: up to $40,000 plus up to $5,000 in funeral expenses for a qualifying surviving spouse, or up to $5,000 for someone else who paid the funeral costs.
These are simplified, faster filings rather than a full probate administration. If you expect a small estate, ask an estate planning attorney whether one of these procedures applies before assuming a full case is required.
Estate Planning Does More Than Simply Avoid Probate
Even with the above systems in place, it's important to remember that other aspects of estate planning will still apply, even if you avoid probate:
Your creditors still get paid.
Avoiding probate does not erase valid debts, and some claims can reach non-probate assets. If you are carrying considerable debt, be sure to speak with an estate planning attorney to understand what happens if your debts are not paid off. RKPT can help you protect your assets through better estate planning.
Your end-of-life care should be established in separate documents.
Probate avoidance addresses what happens at death; a durable power of attorney addresses what happens if you cannot act for yourself while living. Our elder law attorneys can put together a plan that works for you, while protecting your assets during your golden years.
You still need a will.
A “pour-over” will catches anything you forgot to retitle and, if you have minor children, is where you nominate a guardian. Contact our wills and trusts team to make sure your final wishes are in order. Your legacy is too important to leave to chance.
A competent estate planning attorney can make a difference in the ease with which you transfer your assets to the next generation. We're proud of our track record of helping Ohio families rest easy, knowing that their wishes will be honored and their estate will be distributed as they wish. To begin the process for your own estate, call RKPT: (513) 721-3330.
Frequently Asked Questions
Does a Will Avoid Probate?
A will does not avoid probate. A will is simply a set of instructions for the probate court. It tells the judge who should serve as executor and where personal property, real estate, bank accounts, and other assets should go — but a probate judge will still need to review it to ensure that it is legally valid, and that the estate executor follows it properly. The estate executor must administer the estate according to the will's instructions, but this may still bring up disbursement issues that require the probate process.
What About Estate Taxes?
The overwhelming majority of Ohio families will owe no estate tax at all. Ohio repealed its state estate tax effective January 1, 2013, so there is no Ohio estate tax today. Estates approaching the federal threshold—$15 million per person, or $30 million for married couples—need a separate layer of tax planning on top of the tools above. Avoiding probate and avoiding estate taxes are two different goals.
Who Do I Contact About Probate Concerns?
If you want to keep your family out of the probate process, contact the estate planning attorneys at RKPT. We can review how your assets are currently titled and build a plan that fits your needs and addresses all your concerns. Most probate cases we see were avoidable; they come down to an unfunded trust, a stale beneficiary form, or a house that was never retitled. These small gaps can cost families months and thousands of dollars.
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