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Whether probate is necessary depends on state law, which can vary by state. Some states allow for informal probate, which means the executor of the estate takes care of most tasks without direct approval of the court.
In other cases, an affidavit may be used in place of probate. For other estates, they must go through probate before the heirs can receive ownership of the assets. The same situation occurs if all the assets have listed beneficiaries. Anyone who is the executor of an estate or the personal representative can talk to an estate attorney to find out if their estate must go through probate.
This means the court is made aware of the situation and will approve or appoint someone to oversee the distribution of the estate. Before anything else can be done, someone must file for probate. The first step which must be done when someone dies is to find the will and file it with the court.
If a will exists, it must be presented to the court when the person dies. To file the will, you will submit it to the court in the county where the person lived. At the same time, you would fill out a form asking that probate be opened.
Much of the time, you will go to the court clerk, which handles civil, criminal and probate matters. Some locations have a separate probate court where you will submit your form. A probate petition is usually filed in the county where the decedent lived when they died. If it is unclear where the decedent was permanently living when they died, a petitioner can check the will, although it is possible that the decedent wrote their will in one county and subsequently moved to a different county.
In that case, a petitioner can consider other evidence, such as where the decedent owned property, where they kept bank accounts, or where they were registered to vote. If the decedent owned property in more than one state, an executor may need to conduct ancillary probate.
The first hearing that a court will hold after a petitioner files a probate petition will be to officially appoint an executor. A petitioner will most likely be responsible for sending formal legal notices to any beneficiaries or other heirs about the date and time of the hearing.
They may also be required to notify any creditors or other interested parties and publish a notice in the newspaper to reach unidentified parties. During the hearing, any interested party may object to the petition. If no party files an objection, a petitioner may be appointed as the executor without appearing at the hearing, although a petitioner should consult with a lawyer or court clerk to determine if their appearance is necessary.
If the court approves the petition, it will issue documents authorizing the petitioner to act as the executor. Last reviewed November Probate Contents. What Is a Probate Petition? Once that has been obtained, you should file in the county where the deceased legally resided.
The petition should include:. Do you always need an attorney to handle probate? Following the filing of a petition for probate and the hearing, the court will issue Letters of Authority to the executor.
From there, the executor can identify beneficiaries, give notice to creditors, handle creditor claims, and draw up an inventory of the estate assets. Note that, under Ohio probate law , creditors have six months to file any claims. Once creditors have been dealt with, the executor must petition the probate court to close the estate. Upon approval from the court, the estate can be distributed to beneficiaries.
How quickly it takes for probate to be completed can depend on several factors.
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