Full Administration with Will or Without Will

There is no statutory limit on opening an estate; however, most estates are opened within 30 days of death so that matters can be handled in a timely basis to assure that benefits are preserved, assets are not scattered, and matters can be addressed while the memories are fresh and documents can be located.  If the estate is not timely handled, creditors or other interested persons may apply to be appointed to administer the estate or apply for the appointment of a special administrator to preserve assets and receive filed claims.

If there is an intention to present an “oral will” special time limits make prompt commencement of an estate administration imperative. (See below for “Oral Will”)

If there are no probate assets to administer, there is no requirement that the will be presented to the Probate Court; however, Ohio law provides that no will is effective to pass personal or real property unless it has been presented and admitted to probate (RC 2107.61).  It provides that a person knowingly withholding a will from the Court without reasonable cause for a period of more than 1 year may be held to have forfeited the right to inherit under the will.  Oftentimes, even if there are no probate assets, the decedent’s will is filed with the Probate Court after death “for record only” to assure that it has been timely presented and will be available if later probate assets are discovered.

An oral statement made by a decedent during the last sickness, while of sound mind and memory, may be effective to pass personal property, but NOT to pass real estate.  To be effective for any purpose it must be reduced to writing within 10 days of having been spoken and witnessed by the two people who heard the utterance.  Thereafter, the writing must be presented to the Probate Court within 3 months after death. (RC 2107.60)

The initial determination that should be made is whether the value of the assets, nature of the heirs, and extent of the debts permit the handling of the estate through one of the abbreviated procedures known as Release from Administration, Summary Administration, or  Short Form Release. There are FAQ’s for each of those procedures on this website within the “Estates” tab.

If there is a will, and if it is admitted (accepted) for probate, the person named in the will as the Executor will generally be appointed.  If there is no will, the Court will appoint a suitable Administrator, giving priority to the surviving spouse, if any, and then to other relatives within a statutory scheme, recognizing that the person appointed must be suitable and qualified to handle the duties required.  Letters of Authority are issued to the appointee (also referred to as the fiduciary).  Prior to the appointment being made, the fiduciary must sign a written acceptance of the duties, and there may be a requirement that the fiduciary posts a financial surety bond to protect the heirs and creditors against a loss if the fiduciary would fail to properly complete the task or mishandle the assets.  The Court may remove a fiduciary who fails to administer the estate with reasonable diligence or who violates the duties imposed by law.

While the duties will vary greatly depending on the asset mix, the family relationship and whether the decedent’s estate is solvent (more assets than valid debts), the fiduciary in every estate must do the following:

• Determine the names, ages and degree of kinship of the heirs to the decedent and to one another.
• Take possession of and protect the assets of the decedent.
• Appraise all property that does not have a readily ascertainable value.  The estate fiduciary may elect to use the County Auditor’s market valuation as the inventory valuation for the real estate instead of obtaining a fair market value appraisal.  In that event, the inventory listing should be annotated as “auditor’s valuation” and a copy of the County Auditor’s property record card identifying the parcel and the owner(s) should be included.  A motion to dispense with appraisal is not required when using the County Auditor’s valuation.
• File a written Inventory and Appraisal of the decedent’s assets within 3 months of being appointed.
• Receive and determine the validity of all claims submitted against the estate and reject any untimely or invalid claims.
• File timely tax returns (income, estate, sales, etc.) and pay the taxes due in order of their statutory priority and to the extent that there are estate assets from which to pay them.
• Pay valid claims in the order of priority set by law and to the extent there are assets available.
• Liquidate (only if necessary, or directed) and distribute assets to the proper heirs and in the proper amounts pursuant to the will, or if there is no will, then pursuant to Ohio law, but only after all clams, debts and cost of administration have been paid or are secured to be paid.
• File accountings with the Court reflecting all of the receipts and distributions.

The majority of estates are administered within 9 months of appointment of the fiduciary; however, issues surrounding taxes, creditors’ claims, the ambiguity of documents, family conflicts, or other civil litigation may extend the estate administration. Court approval must be obtained to extend the administration beyond 6 months from the appointment of the fiduciary.  The fiduciary may determine that partial distributions can be safely made to heirs before the estate is formally closed.  It is important to commence the estate soon after death since the estate can never be concluded until it has been opened.

For persons who die without a will (intestate), the Ohio legislature has established by law who will succeed to the property of the decedent.  It gives varying degrees of priority to the surviving spouse, depending on whether there are children of the decedent and whether the surviving spouse is the parent of at least one of the children.  It there is no spouse or children of the decedent, then other relatives are classified by degree of kinship and prioritized.  The Statute of Descent and Distribution must be read carefully before distributions are made.  Only rarely does the decedent’s estate pass to the State of Ohio by escheat.

If the fiduciary fails to bring an action after 30 days, another interested party may request the Court to provide directions, interpretation, or construction of a provision of the decedent’s will by commencing a civil action in the Probate Court (See “Civil Proceedings” tab on this website).  All interested parties will be served with notice of the action and the Court will hold a hearing to determine the intent of the decedent.

If the will appears to be prima facie valid (proper age, number of witnesses, signature, etc.) it will be admitted to probate by the Court and written notice of its admission will be given by the applicant or the fiduciary to all next of kin and persons who would inherit if there was not a will.  Admission of the will does not barr a later contest as to its validity.

An interested party may contest the validity of the will by commencing a civil action in the probate court in the county in which the will was admitted to probate (See “Civil Proceedings” tab on this website).  The legal presumptions are in favor of the will and the mental capacity of the testator and against undue influence having been exerted over the maker.  The person contesting the will has the burden of proof and the contesting party must establish by a preponderance of the evidence that the testator lacked the mental capacity to make a will, was subject to undue influence in the preparation or execution of the will, that the document was improperly executed, or that the will is a forgery.

Any party to the will contest has the right to request a jury trial of the matter and three-fourths of their number must concur in the verdict.  In general, a will contest must be commenced within 3 months after the filing of the Certificate of Service Waiving Notice (p. 2, Form 2.0) or Certificate of Service of Notice (Form 2.4) of probate of will.  Persons considering contesting a will should promptly consult legal counsel, as the time for contesting a will is quite short.

Currently, there is a Federal Estate Tax.  It is beyond the scope of this discussion to provide details of the current federal estate tax.  It is the fiduciary’s duty to determine if a particular estate is required to file a federal estate tax return (Form 706) and if so, the return is due within 9 months of the date of death, unless extended.

For persons dying on or after January 1, 2013, under current Ohio law there is no Ohio estate tax.

For persons dying prior to January 1, 2013, if the value of the gross estate exceeds $338,333 a tax return must be filed and an estate tax may be due.  It is the fiduciary’s duty to determine if the particular estate is required to file an Ohio estate tax return and if so, the return is due within 9 months after the date of death, but is automatically extended to 15 months after death, although interest accrues on any tax not paid within 9 months of death.

An Estate Tax Form 22 must be filed with the Court in every estate when the decedent died on or before December 31, 2012.

Due to the complexity of the law and the legal process that is involved with administering an estate the Probate Court strongly recommends that every fiduciary seek legal counsel.  Legal fees for services to the fiduciary, when approved by the Court, are properly payable from estate assets.  The fiduciary is making decisions that have a direct bearing on the legal rights and benefits of every creditor and heir.  Not only may a fiduciary be personally liable for making incorrect decisions, prejudicing those interests and rights, but the Court may impose sanction and damages.  Under Ohio law “pro se litigants are bound by the same rules and procedures as those litigants who retain counsel. They are not to be accorded greater rights and must accept the results of their own mistakes and errors.” Meyer v. First Nat. Bank of Cincinnati, 3 Ohio App.3d 209, (1st Dist, 1981).
Court employees are prohibited by statute from practicing law, cannot complete forms and CANNOT give legal advice.