Who is involved in probate court?
If someone is not versed in the court system, the names used for everyone in probate court can be challenging. This is true because people can wear several hats in the course of a probate court case. Knowing what each role does in a probate case can help in understanding what is going on during a proceeding.
In Ohio, probate court judges are elected officials. Voters elect them to six-year terms in county-wide elections. The probate court judge oversees the day-to-day functioning of probate court and all of the cases falling within its jurisdiction. Judges ultimately sign off on the administration of estates. They issue rulings in cases where there are challenges to wills or other contested hearings. In many counties, Judges hire magistrates to assist in the caseload. Oftentimes, people may refer to magistrates as “judge.”
Magistrates are Ohio attorneys that conduct hearings on behalf of the judges that hire them. When a judge delegates duties to a magistrate, the entire hearing process may be sped up. Magistrates look, dress, and often sit where judges sit in a courtroom. Like a judge, you may call them “Your Honor,” “Judge,” or “Magistrate.” In Ohio, Magistrates are bound by the same rules of conduct as judges. If a party feels that a Magistrate rules incorrectly, they may “object” to their decision. Judges hear these obkections.
Oftentimes, you will hear the word administrator used interchangeably with “executor” and “fiduciary.” Specifically, in Ohio, the word administrator refers to the person who is appointed by the court. This person resolves the deceased’s financial affairs. He also makes distributions of property either in accordance with Ohio law or what is stated in the will.
Someone becomes an administrator by receiving a letter of appointment by the probate court. If not clearly stated in the will, courts look first to surviving spouses when appointing an administrator and then the next of kin. If these people do not wish to serve as administrator, they may waive their right to serve as the administrator. Courts often require administrators to post a bond in order to perform their role.
Administrators must collect the property of the court. Other duties include presenting inventories to the court, obtaining appraisals, and paying debts. They also distribute property to the beneficiaries under the will or under Ohio law. The administrators must also determine the names, ages, and contact information for all heirs and beneficiaries. Administrators also determine if claims made against an estate are valid. They also prepare tax returns for finalized estates. Because of the duties assigned to an administrator, lawyers often assist as attorneys for the estate. Administrators are entitled to reasonable compensation for the services they provide in their role.
A will can name someone to administer the estate in a role called the executor. In order to serve as an executor, a person must be competent and at least eighteen years old. Like all administrators, courts appove executors and impose bonds. Often, though, the will may indicate that the bond is set at $0.00. Executors may receive reasonable compensation for their services. Executors serve as a fiduciary to ensure that they are acting in the best interest of the estate they serve.
A beneficiary is someone entitled to receive a portion of the probate estate. The will can name beneficiaries. In order instances, Ohio law dictates who is a beneficiary. A beneficiary can serve as the executor or administrator of an estate. However, problems arise if they are one of the witnesses to a will. Beneficiaries may also refer to individuals named as such on retirement accounts, insurance policies, trusts, and other property that may avoid probate.
Descendants and Next of kin
The next of kin refers to the closest living blood relative to a deceased person. In Ohio, the degrees of relationship between the deceased and a beneficiary determines the next of kin. In terms of priority of the next of kin, the courts first look for surviving spouses. If there is no surviving spouse, courts look for the children of the deceased and the grandchildren. If none exist, the courts will look for other lineal descendants. Ohio’s statute of descent and distribution establishes the order for the next of kin.
Probate courts appoint guardians to care for the affairs of an individual. A person needs a guardian when they are a minor or otherwise considered incompetent under Ohio law. Often, the guardian may be a person, a corporation, or other entity. A guardian may handle the personal affairs of someone else. This is referred to as a “guardian of the person.” A guardian controls the financial affairs of an individual when they are a “guardian of the estate.” In some instances, a guardian serves both over the estate and the person. Guardians have fiduciary duties to act in the best interest of the person they serve, called a ward.
Guardians must follow the orders of probate court and protect the ward. This includes their financial affairs and their treatment. In order to become a guardian, an individual must apply to the court and subject himself or herself to background checks. Courts may require guardians to post bonds equal to the value of the ward’s estate. All guardians must go through yearly recertification training.
The role of a guardian may be for a temporary period, on an emergency basis, or permanent depending on the need of the ward.
Under Ohio law, a ward is anyone that has a guardian acting for them. This can be a court-appointed one, or the probate court itself. Guardians owe wards a fiduciary duty and must act in their best interest.
In the most basic sense, a creditor is someone to whom money is owed. Creditors have the right to present probate claims against the deceased up to six months after death. Because of this, creditors may take steps to have administrators appointed. This allows them to handle the affairs of the deceased and helps ensure payment.
Those inheriting gifts are not responsible for debts. However, the property they receive may be subject to valid debts owed to creditors. This may result in a request to liquidate the property.
The accounts department in probate court reviews and, at times, audits the inventories and accountings submitted for estates, guardianships, and trusts in probate court. In doing so, the estate must demonstrate all payments and expenses properly. The accountants work with fiduciaries to help ensure the protection of the best interests.
A testator is someone who has executed a will. The testator must be over the age of eighteen and of sound mind to execute a valid will in Ohio. Two disinterested parties must witness the signature of the testator.
Also referred to as a grantor, a settlor is someone who creates a trust for beneficiaries. A settlor may, or may not, also serve as a trustee of the trust. If the settlor creates a trust while alive and acts as a trustee during his life, the trust is living trust, or inter vivos trust.
A trustee holds property in a trust and controls the property in a way that follows the rules of a trust agreement. A trustee may benefit from the trust as a beneficiary and may also be the person who created the trust. Likewise, trustees carry a fiduciary duty to ensure that their management of the trust assets is consistent with the desires of the trust in serving the beneficiaries.
A fiduciary holds a legal position of trust for another individual. In this position, fiduciaries must follow duties to ensure the care of the other person or their assets. Similarly, a fiduciary must act in the best interests of the protected person.
In a probate court proceeding, a fiduciary refers to an executor or administrator of an estate. Because of this, people use the terms interchangeably. In addition to executors and administrators, guardians are fiduciaries due to the duties they owe their wards.
Lawyers serve several roles in probate court. A lawyer may represent the fiduciary in their role of administering an estate or representing a guardian. Likewise, a lawyer may represent a beneficiary or a family member in a will contest. Additionally, lawyers perform the roles of judges and magistrates.