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The first step of probate: Locating the will

On Behalf of | Jan 29, 2024 | Estate Planning |

In Ohio, any person in possession of a will has the responsibility to file it with the probate court after the death of the testator (the person who made the will). Typically, this is the executor’s job, so the testator should choose someone who they know will fulfill their obligations loyally and in good faith. If the executor named in the will is unable or unwilling to file it, the responsibility may fall to another interested party, such as a beneficiary or a relative. If no one else takes action, a creditor or another interested party may file the will with the court to initiate probate proceedings. It is important to file the will on time.

Ohio law generally requires a will to be submitted to probate within a reasonable period of time after the testator’s death. Failure to do so could result in legal penalties and may complicate the administration of the estate. Therefore, surviving relatives and loved ones must immediately locate the will.

What happens if you cannot find a will?

First, understand that without a will, the estate will be subject to the state’s intestacy laws. In Ohio, these laws dictate how distribution will proceed when someone dies without a valid will. The distribution follows a specific hierarchy. However, before the estate defaults to intestacy rules, the surviving heirs and potential beneficiaries must diligently search for the will to honor the testator’s final wishes and prevent disputes.

If their search comes up empty, the probate court will proceed as if there was no will. It could prolong the entire probate process and cause unnecessary financial and emotional burden to the surviving family members.

Taking steps to prevent intestate succession

The reality of intestate succession can lead to results that may not align with the decedent’s wishes. A spouse may find themselves receiving a smaller share of the estate than expected and the inheritances intended for minor children might be subject to control by a guardian not chosen by the family. Furthermore, distant relatives could emerge to stake a claim on assets. These potential outcomes highlight the critical importance of estate planning and the secure storage of such legal documents.

To safeguard their final wishes and reduce family stress after passing, estate owners must actively create and update their will and communicate openly about their estate plan to loved ones. They should store their wills securely and ensure at least one trustworthy person knows where to find them.

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