The 3 (or 4) P's of Probate Court
Updated: Jan 21, 2021
People come to my office daily and one of the most common things they say is
“I want to avoid Probate Court.” This is usually because they have heard from a financial advisor, a friend or through the grapevine that they should avoid Probate Court. I try to help people understand why that’s important and it comes down to what I like to call “The 3 or 4 P's of Probate.” What that means is that Probate is Public, Pricey, Prolonged and sometimes, Premature.
PUBLIC: Assets that go through Probate Court are considered public because Probate Court is presided over by a judge. It is the judge’s job to make sure the law is followed. The law determines the rules by which a deceased person’s assets are distributed. If a person had a will, the judge must know what the will says and therefore the will must be filed with the court - which is public. If the judge is to enforce the distribution of assets, then the judge must know what assets the deceased had. This is done by inventory and inventory is public. If the judge is to enforce the distribution of assets to individuals, the judge must know who those individuals are and what money should go to them. This is done through an accounting that is public. In the accounting the executor or administrator of the estate tells the judge what debts the deceased had and what was left over to be distributed to beneficiaries.
Most people I know wouldn’t tell their neighbors, their kids, maybe their parents, and certainly not their business acquaintances or enemies what was in their bank accounts - but if their estate goes to Probate Court, all of that is public.
2. PROLONGED: The probate process in Ohio generally takes 9 to 18 months.
During this time the executor of the estate is working with the court and generally an attorney to collect assets, inventory them, pay bills and then finally make distributions to beneficiaries. Most folks I meet with want to avoid the length of time that their beneficiaries have to wait to receive distributions. Often times beneficiaries and heirs are relying on assets or money that is tied up in the probate estate to live. Therefore, they end up taking out loans that need to be repaid after the administration.
3. PRICEY: Franklin County (Ohio) Probate Court has the following statement in bold and highlighted on their website: “Legal practice in the probate court is restricted by law to attorneys who are licensed by the Supreme Court of Ohio. Due to the complexity of the law and desire to avoid costly errors, most individuals who have filings before the courts are represented by an attorney. Court employees are prohibited by statute from practicing law and cannot give legal advice.” Most people are represented by an attorney in probate court. Attorneys charge fees for that service.
4. PREMATURE: When a minor child inherits through the Probate Court system, unless the Will specifies otherwise, the child's inheritance will be held in a guardianship. Their guardian will then need to make decisions for the distribution of the assets in that guardianship. The assets will be distributed to the child once the child turns 18, which, under Ohio law, is the age one is considered an adult.
For most of my clients, and for me, the idea of our children inheriting money at the age of 18 is very scary but this is the default outcome of Probate Court. A properly funded trust will bypass the Probate Court, in turn saving the people you love time and money.
If you would like to learn more about how having a trust can make things as easy as possible for the people you love the most, our Client Relations team can not wait to hear from you. Call (614) 760-1801 or email firstname.lastname@example.org and we will gladly get you set up for a complimentary consultation.