What is the function of the probate court? We discuss the probate process and court functions in the article below.
If you use a simple last Will to state your final wishes with regard to the distribution of your monetary assets, your Will name an Executor to act as the hands-on administrator. Some people think that the Executor can read the terms of the Will to the people that are impacted and start distributing assets right away.
In reality, this is not the way it works at all. A Will would be admitted to probate, and the probate court would provide supervision during the process.
Typically, during the probate process, there is a “proving of the Will.” The court examines the document to make sure that it has been properly executed, and witnesses to the signing must be contacted. In Ohio, this is not the case. In the Buckeye state, the witnesses are not contacted unless the Will is lost or contested.
Wills done by our team of professionals are self-proving, but not necessary. This means that we take an extra step to make the Wills done by Zimmer Law Firm “portable” in case our clients move to a self-proving state such as Kentucky or Florida.
Interested parties, someone named in the Will, the next-of-kin, the Executor, or the attorney general can contest the validity of the Will during the probate process. Acceptable grounds include fraud, coercion, undue influence, improper execution, the introduction of a more recent Will, and mental incapacity.
Another function of probate is to allow the creditors of the decedent to come forward seeking satisfaction. This is totally fair, but it slows down the process considerably.
In all, it can take eight months to a year or more for probate to run its course, and the inheritors receive nothing during this interim. That is a long time to wait for an inheritance, and it is not the only drawback.
There are considerable expenses that accumulate during the probate process, and it is a public proceeding. Anyone that is interested can access probate records to find out how the assets were distributed to the heirs.
The loss of privacy is generally disconcerting, and the information can cause genuine hard feelings among interested parties.
Another type of case that would fall under the jurisdiction of the probate court is the matter of adult guardianship. Unfortunately, a significant percentage of elders become unable to make sound decisions at some point in time.
Alzheimer’s disease strikes 32 percent of people that are 85 years of age and older, and there are other underlying causes of incapacity. If you do nothing to prepare for this eventuality in advance, the probate court could be petitioned to appoint a guardian to act on your behalf.
This is a necessary safeguard, but a guardianship proceeding can be less than ideal. First of all, there is the unwieldy nature of the process itself. Secondly, the person that is chosen may not be someone that you would have selected yourself. Lastly, family members may disagree with regard to the optimal course of action.
You can proactively prevent a guardianship through the inclusion of an incapacity component within your broader estate plan. This would involve the execution of durable powers of attorney.
In these documents, you can empower agents to make medical and financial decisions on your behalf. It should be noted that you could also name a disability trustee if you are using a revocable living trust as the centerpiece of your estate plan.
Your incapacity plan should include a living Will as well. With this type of Will, you state your preferences with regard to the utilization of life-sustaining measures like mechanical respiration, resuscitation, and artificial nutrition and hydration.
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What Is the Function of the Probate Court? If You Need Help, Contact Us
If you have asked what is the function of the probate court and have questions, we can help you through the process. If you reach out to our team, our Cincinnati estate planninng attorneys can help you discuss and make a plan to help reach your objectives. You can send us a message to request a consultation appointment, and we can be reached by phone at 513-721-1513.