Cincinnati Probate Attorney Topics: Improper Distributions

There is a common misconception that by creating a Will your assets avoid Probate. In Ohio, using a Will does not allow your assets to avoid Probate.

Once assets are in Probate, the executor (if the person dies with a Will) or administrator (if the person dies without a Will) cannot immediately distribute assets without some risk of personal liability. The executor should only distribute assets after the inventory is approved, after the Will contest period has expired, and after confirming with the Cincinnati Probate Attorney that it is proper to make distributions.

Cincinnati Probate Attorney
The Probate Process

If a distribution from the estate is made to a beneficiary or heir, he or she is liable to return the assets or the proceeds from the assets to the estate if they are necessary to satisfy the share of a surviving spouse who elects to take against the Will or if the Will is set aside (in a contested action).

After distribution, a distributee will be personally liable to a claimant who presents a valid claim. Thus, it is important for a beneficiary not to spend any funds distributed until the Estate is closed and approved by the Probate Court.

If Estate funds are not sufficient to pay creditors (including the sums returned by beneficiaries), the executor or administrator will be liable to the extent that the sum of the remaining assets of the estate and the assets returned are insufficient to satisfy the claims. The executor or administrator may provide for the payment of rejected claims or claims in suit by setting aside an amount sufficient for paying the claims. In this case, assets are set aside for the payment of the claims in a manner approved by the Probate Court.

In this type of estate administration matter, each claimant for whom assets are to be set aside is provided notice, in the manner as the court shall order, of the hearing upon the application to set aside assets and shall have the right to be fully heard as to the nature and amount of the assets to be set aside for payment of the claim and other conditions claim.

In some cases, the court, as a condition to any distribution, may require any beneficiary or heir to give a bond to the state with surety approved and in an amount determined by the court, conditioned to secure the return of the assets to be distributed, or the proceeds from the assets or as much of the assets as may be necessary to satisfy the claims.

The best option for the person in Cincinnati, Ohio managing a Probate Estate is to work with his or her attorney to ensure distributions are proper. Distributions without this legal guidance create more legal problems for the executor and the beneficiaries.

Feel free to contact Cincinnati Probate Attorney Elliott Stapleton to review your potential Estate Administration matter in Hamilton County, Butler County, Clermont County, or Warren County.

When scheduling an appointment with Elliott, feel free to request either of our firm’s current locations:

Main office: 123 Boggs Lane, 1st Floor, Cincinnati, Ohio 45246

Hyde Park/Central Cincinnati office2101 Grandin Road, Suite A, Cincinnati, OH 45208

Sources: Chapter 2117: PRESENTMENT OF CLAIMS AGAINST ESTATE of the Ohio Revised Code

Naming an Executor

If you are married, the surviving spouse is typically appointed as the Executor. Similarly, if there is only one beneficiary he or she should also be appointed as the Executor.

An Executor must be at least 18 years old to be appointed by the county Probate court. When creating your Ohio Will, this consideration must be taken into account.

Executor of an Ohio Will

An Executor is appointed by the local county Probate Court to manage the distribution of assets consistent with the instructions in your Will. Executrix is the female version of an Executor.

This process of administration includes:

–      Collecting all Probate Assets;

–      Creating an Inventory;

–      Paying all expenses (including the funeral bill, court costs, attorney’s fees, estate taxes, and creditor claims) of the Estate;

An Executor is typically compensated for his or her services. Here is a link to calculate the potential executor fee.