(RC Chapter 2127 and Loc.R. 65.1 to 65.3)
A probate land sale proceeding may be filed by a guardian of the estate, conservator, administrator, executor, or trustee if the statutory purposes for the sale are satisfied.
The allowable purposes vary for estates and guardianships. Often in an estate a land sale is filed when the fiduciary does not have the power to sell real estate through a governing instrument (will, trust or executed consents to sell) and it is necessary to sell the real estate to pay debts. LIkewise, a guardian of the estate, who may not be able to use the guardinship sale by consent procedures set forth in RC 2127.012 may find it necessary to file a land sale proceeding. It is the method whereby the fiduciary obtains authority to sell the real estate from the Court. A land sale proceeding will be opened by the Court as a companion case to the general probate case. If a minor or incompetent is involved in the proceeding as the ward or beneficiary, the Court may appoint a guardian ad litem (GAL) to represent the minor’s interests if there is a conflict of interest, or the minor’s interests are not otherwise represented.
It is not uncommon for a fiduciary already possessing a power of sale either through the language of a governing instrument (will or trust) or through the possession of executed consents to sell to also file a probate land sale proceeding to assure that the probate court proceeding has lis pendens priority over attempts by interested parties, mortgage holders or other lien holders to invoke the jurisdiction of the general division of the Common Pleas Court.
The guardian/conservator of a ward or the fiduciary of a decedent may obtain authority from the Probate Court to sell the whole or entire interest in a particular real estate, even though the ward or decedent only owns a fractional interest in the parcel. The fees of the fiduciary associated with the sale are only charged against the portion of the proceeds of the sale attributable to the interest of the decedent or the ward.
A summons is issued and served as in other civil actions. Competent persons with an interest may waive summons, consent or voluntarily appear. Incompetents must be served and their guardians may not waive service.
Sales are free of the expectancy of dower. The person having the dower interest must be paid an allowance for the dower interest from the sale proceeds unless the answer of the person holding the dower interest waives the allowance.
The real estate interests being sold may also include coal, iron ore, limestone, fireclay, or other minerals on or under the real estate and the right to mine them.
A real estate interest may only be sold subject to an existing mortgage with the consent of the mortgage holder. If consent is given the estate of the decedent or the ward is released from any subsequent deficiency.
If the value of the decedent’s or ward’s interest in the real estate to be sold is less than $3,000, the Court has discretion to waive many of the procedural requirements through a summary land sale proceeding (RC 2127.11).
A default judgment cannot be entered against a party without the filing of the Military Service Affidavit (see Local Rules/Local Forms tab on this website). This link may be helpful in verifying military service status. https://scra.dmdc.osd.mil/
Items Necessary to File a Land Sale Complaint:
- Prepare a Complaint in accordance with the statutes and include requests to sell the entire interest, employ brokers, surveyors, and conduct a public or private sale as may be applicable; name as necessary parties all those identified in RC 2127.12 and .13, as may be applicable;
- File written request for service and sufficient copies of the complaint for each party requiring service;
- Evidence of title must be prepared and filed in accordance with local rules;
- The legal description of the real estate to be sold must be approved for transfer purposes by the County map department, if the real estate is located within Delaware County; and
- The base court cost deposit is one hundred sixty dollars ($160.00)only.
Items Necessary to Complete the Land Sale:
- When the matter is at issue and responsive pleadings have been filed or are in default, either move for a hearing or present the Court with an Agreed Entry Finding Sale Necessary, Ordering or Dispensing with Appraisal or request a hearing. Include the legal description in the Entry or by way of attachment.
- An Entry Finding Sale necessary will NOT be approved until the Inventory has been filed in the companion case.
- If a default judgment is being entered against a party, file the Military Service Affidavit (see Local Rules/Local Forms tab on this website). This link may be helpful in verifying military service status. https://scra.dmdc.osd.mil/
- Return the Order to Appraise and an Entry Approving Appraisal (if not dispensed with), an Entry Ordering or Waiving Additional Bond, and an Entry Approving the Additional Bond, if required.
- Prepare an Order of Sale ( Public or Private).
- Market the property and Return the Order for Private (Public) Sale to the Court once the sale price and exact name of the buyer have been established; if sale unsuccessful, report that on the Return of Order of Sale and follow statutory alternatives; Note: the Return Order of Sale for a private sale must recite that the sale was made after diligent endeavor to obtain the best price for the property and the private sale was at the highest price for the property (RC 2109.45).
- Tender Entry Confirming Sale, Ordering Deed and Distribution (the Entry must include gross proceeds, terms of the sale, and the intended closing deductions and disbursements); the proposed distributions must reflect the statutory priorities (RC 2127.38) and the relative priorities of competing lien holders if the proceeds are inadequate to pay all of them; file updated evidence of title.
- Execute the Fiduciary deed at closing and receive the net proceeds.
- File a Report of Distribution with a copy of the signed closing statement.