last will and testament doesnt avoid probate


Gregory S. DuPont, JD, CFP Jan. 31, 2023

We often think that if we're careful enough, and draft an estate plan, our estate won't have to go through probate when we die. But sometimes, the unexpected happens. Or, there were little legal nuances we didn't consider. Here are seven reasons why an estate might have to go through probate:

  • The decedent didn't have a will

  • The original copy of the decedent's will can't be found

  • There is family fighting and/or the validity of the will comes into question

  • The decedent had probate assets - assets that weren't in a trust

  • A third party refuses to accept your affidavit

  • A personal representative is needed to represent the estate in court

  • A personal representative is needed to transfer real estate

What is Probate?

Probate is the legal process of distributing a person's assets after their death. If the decedent had a will, the Probate Court will review it and appoint the nominated decision maker. This person, also known as an executor or personal representative, distributes the decedent's money and property to their chosen beneficiaries. They follow the directions laid out in the decedent's will.

If the decedent didn't have a will, a friend or family member can apply to be the 'estate administrator'. They work with the court to wrap up the decedent's finances. The court will decide who the decedent's true heirs are, and who should receive an inheritance.

Why Avoid Probate?

Many people want to avoid probate because it can be an expensive, lengthy, and public process. Many of our clients want to spare their families from that burden.

So, many choose to place their assets in a trust, and thereby avoid probate when they die. By creating a revocable living trust, people can pass on their money and property to their chosen beneficiaries without having to get the court involved. Well, most of the time. There are several circumstances in which a probate proceeding may still be necessary.

A Third Party Refuses to Accept Your Affidavit

Sometimes, friends and family members of the decedent will submit an affidavit to a person or institution. An affidavit is a written statement verified to be true. Executors and administrators may submit affidavits to gain access to the decedent's money or property without having to go through the traditional probate process. However, sometimes the person or institution that receives the affidavit won't give up the asset(s). In those instances, further action is needed.

Affidavit for Small Estates

Nearly every state allows smaller estates to bypass the typical probate proceedings, or at least use a quicker and simpler probate process. Ohio is one of those states.

In Franklin County, we have something called "Release from Administration". Estates may qualify for Release from Administration for two reasons:

  • There is a surviving spouse who is the sole beneficiary and the estate is worth no more than $100,000

  • There isn't a surviving spouse and the estate is worth no more than $50,000

After a person dies, the beneficiary of a small estate may submit to a person, bank, or institution a small estate affidavit. This affidavit states that they are entitled to money or property, and supplies a death certificate. The affidavit is usually required to be notarized. So, the person or institution that received the affidavit can rely on it to transfer money or property to the beneficiary. The person or institution won't be held liable if it's later revealed that the asset was transferred to the wrong person.

Even so, the person or institution may refuse to comply with the affidavit. For example, if they believe the property they hold is worth more than the amount allowed for a small estate affidavit. Or, if they're aware of a dispute among heirs.

A full probate proceeding or lawsuit may be necessary under such circumstances.

Last Paycheck Affidavit

In some states, the spouse of someone who dies may be allowed to submit an affidavit to the deceased person’s employer. This affidavit allows the employer to release their last paycheck to the spouse. If there is no surviving spouse, some states also allow the paycheck to be released to adult children, parents, or siblings. However, there are often limits on the amount that the employer is permitted to pay to the spouse or other party outside of probate proceedings. Some states may require the family member to submit a particular form with the affidavit.

This allows the surviving spouse or family member to have timely access to a paycheck that they may have been relying on to pay their bills.

If the employer refuses to release the decedent's paycheck, the surviving family member may need to initiate a probate proceeding or lawsuit.

The Estate Needs to Go Through Litigation

Sometimes, a personal representative must be officially appointed to defend the estate in a court action. For example, in Sander v. Commissioner, Sandy and her daughter Leda were co-trustees of a revocable living trust that Sandy had created. In addition, Leda was nominated as the executor of Sandy’s will. When Sandy died, Leda became the sole trustee of Sandy’s trust.

Sandy's estate was never probated because all assets were transferred through the trust. As trustee, Leda took care of that.

After Sandy’s death, the Internal Revenue Service issued notices of deficiency to Sandy for amounts it asserted that she owed in unpaid taxes. This income tax wasn't a part of the trust, so the court argued that Leda didn't have the authority to represent her mother's estate in this case. Rather, a personal representative needed to be appointed who could litigate the case on behalf of Sandy’s estate.

A Personal Representative Is Needed to Transfer Real Estate

Real estate can be transferred outside of probate in a few ways.

  • Some types of joint ownership avoid probate by giving the full title of the real estate to the surviving owner upon the death of the first.

  • In Ohio, we allow transfer-on-death deeds which make this process even easier. In the deed, a new owner is specified and the title immediately transfers when the current owner dies.

  • Transferring the title of a property to a trust, and having the trust dictate who that property goes to.

Ohio law also allows real estate to be transferred using a small estate affidavit in limited circumstances. The decedent must have died over six months ago, no creditors have filed claims, and the decedent died owning only real estate.

Unless one of these estate planning solutions is implemented, a personal representative must be appointed to transfer real property in a probate proceeding.

Contact a Dublin, OH Probate Attorney

If avoiding probate is a top priority for you, you need to contact an experienced estate lawyer. Give us a call at 614-389-9711 to get started on your estate plan.

Want to learn more about probate and non-probate assets? Download our Consumer's Guide to Estate Planning in Ohio here.