Probate is a judicial process through which certain property owned by a deceased person (a “decedent”) is managed and distributed by a court-appointed representative. The probate process in Ohio involves many rules, deadlines, paperwork, and court approval. However, the four main phases of an Ohio probate estate are: (1) court appointment of an executor or administrator; (2) the “Inventory” which is an itemized list of the decedent’s assets that are subject to a probate estate; (3) an analysis of decedent’s debts and which ones must be paid; and (4) the “Fiduciary’s Account” which is an itemized list of all receipts and disbursements into and out of the estate. If the decedent had a Last Will and Testament, their assets should be distributed according to the terms of the Will. If the decedent did not have a Last Will and Testament, their assets will be distributed according to Ohio law. As an estate planning attorney, I try to guide my clients to avoid probate for three reasons: Privacy - Documents filed in a probate court become part of the public record, which means there is very little privacy regarding who inherits what. Also, the names and addresses of the decedent’s heirs are part of that public record. This means that if I inherit $100,000 from my mother through a probate process, my name, address, and the amount I am inheriting are all part of a record that the public can see. Cost – there are court costs (sometimes referred to as “filing fees”) when you open a probate estate. Usually there is an attorney involved, which means the estate pays for attorney fees. There is a statutory fee that is paid to your executor or administrator. And, there could also be other expenses like appraisal fees for certain assets like a home or a business. Time – a probate estate usually takes 6-12 months to complete, but can take longer. For example, selling real estate can take months. Having a family business appraised can take months. If the address of a beneficiary is unknown, it can take months to put a notice in a local newspaper trying to notify them. There are any number of reasons that a probate process can be delayed. So, what assets must go through a probate process? If the decedent owned assets titled solely in their name (not jointly owned with anyone), and that asset did not have a beneficiary attached, that asset will likely go through a probate process. For example, if a life insurance policy has a beneficiary listed as part of the life insurance paperwork, and the beneficiary is alive to receive the benefit, the life insurance benefit is paid directly to the beneficiary and does not flow through a probate process. However, if the decedent owned a car, titled solely in their name, and they did not list a beneficiary on the car title, the car must go through a probate process, and will be distributed according to the decedent’s Will, or Ohio law if no Will. How the asset is titled determines whether it has to go through probate or not. Below are ways to avoid having your assets go through probate. Revocable Living Trusts – a trust is a legal document you create during your lifetime, which states how the assets in the trust should be distributed at your death. The most significant difference between a Will and a Trust, is that a Will cannot own assets. A trust (or more specifically, the Trustees of the trust) can own assets. A trust can also be a named beneficiary on an asset. Any asset that is owned by the trustees or payable to the trust avoids probate. Joint Ownership – if you own property with “rights of survivorship” at your death, that property (whether a house, a car, or a bank account) will pass to the surviving owner without having to go through probate. Beneficiary Designations – if you name a beneficiary on accounts, such as life insurance, retirement accounts, and bank accounts, that money will be paid directly to the beneficiary and bypass probate. Transfer on Death Affidavit for Real Estate – Ohio has a great tool called a Transfer on Death Affidavit, which allows you to designate beneficiaries to receive real estate (your home) without having to go through probate. Transfer on Death Car Title – Ohio now has a transfer on death car title, which allows you to name one or more beneficiaries on a motor vehicle title.

At the beginning of my estate planning practice, I agreed to review Do-It-Yourself Wills for some individuals for a small fee. I do not do these reviews anymore, but during this time, I picked up on some of the pros and cons of doing an online Will. Pros : 1. Cost – typically, the cost of an online Will is significantly lower than hiring an attorney to draft it. 2. Some of the documents are well drafted – some of the forms I have seen include all of the necessary sections of a valid Ohio Last Will and Testament and they include detailed instructions for signing the documents. Cons : 1. Client Errors – Every Do-It-Yourself Will I have reviewed had a client error – every single one. These errors may have been due to the client failing to read the instructions, or inserting their own provisions in the wrong place, but EVERY single document had a significant problem. For example, one of my clients thought he would save money by making his online Will a joint Will with his spouse – this can create problems for the surviving spouse. One client wrote in the Will that all of her property shall be distributed to her three children, and then later wrote that her house only goes to one child – these two provisions conflict and will likely require court involvement to determine what happens. One client stated that their named executor receives all of their assets, to be distributed as the Executor sees fit. The client told me that they thought it would be easier to give their property to one person, who can then distribute it to other family members. If you speak with any estate planning attorney, they will likely tell you that even if you trust a family member to follow your unwritten wishes, we have all seen this plan blow up in smoke many times. Unless your wish is specifically written in a Will or Trust, there is significant risk that your “unwritten” wishes will not be followed. 2. No Legal Advice – Most estate planning attorneys spend valuable time one-on-one with their clients to discuss the client’s wishes and give legal advice. Even if you are looking for the simplest of Wills, there are many things I recommend discussing with an estate planning attorney that you cannot discuss with an online document company. For example, you should know the tax consequences of a probate estate; what happens if you have creditors that you owe money to at your death (credit cards, medical bills, etc.); what family dynamics are involved and how can we avoid conflict among your family members when you are gone; and what are the ways to avoid the probate process altogether. It is unlikely you will receive any of this advice with a Do-It-Yourself Will company. When you pay an attorney to do this work, you are not just paying for the preparation of a document, but also the legal advice that goes along with the process. While Do-It-Yourself Wills can save some money, they can also create a myriad of problems if not done correctly. I strongly recommend consulting with an experienced estate planning attorney for any legal documents.