I have a Will. That means my heirs avoid the probate court, right?

Many people believe that having a Last Will and Testament is all that is needed to keep their assets out of the probate court. However, having a Will is just a first step in the estate planning process.

When you pass away, the probate court will likely have jurisdiction over any asset that is titled in your name only, regardless of whether or not you have a Will. Why is that? Let’s use an example. John Smith, a widower, owns a home, in his name only. John Smith also has a Will naming his two children as his beneficiaries. John has done no other planning, with the exception of a Will.

When John passes away, his home will be subject to the jurisdiction of the probate court, because his home is in his name only. The probate court will accept the proposed Will from John’s executor, his first child. Then, the probate court will act to ensure that the assets over which it has jurisdiction (here, the home) get transferred to the right heirs, according to either John’s valid Will (the probate court also ensures that a Will submitted for consideration is legally valid) or according to the Ohio statutes regarding inheritance. This probate process can take many months and requires court filing costs. It also typically requires the services of an attorney, and that generates attorney fees that will be owed by the estate, i.e. the heirs.

Instead, John could have gone a step farther and provided, by a legal instrument called a Transfer on Death Affidavit, named beneficiaries for his home (i.e. his two children). This means that at the moment John passed, his real estate would be owned by his two children, skipping the probate court process altogether. By taking additional estate planning steps, John would have saved his heirs a lot of time and potentially thousands of dollars in attorney fees. For certain clients, a trust is also a very beneficial instrument in accomplishing estate planning goals.

For assistance with estate planning, probate administration, Wills, and trusts, contact Gertz Law Firm at 513-554-1868. We have offices in both Reading and Loveland to better accommodate you.