Probate is the legal process of settling a decedent\u2019s estate\nand distributing the remaining assets to beneficiaries. Distributions of a\ndecedent\u2019s property are made according to the terms of a probated will (for\ntestate estates) or pursuant to Ohio\u2019s laws of intestate succession (for\nintestate estates). For the provisions of a will to become effective, the will\nmust be admitted to probate.<\/p>\n\n\n\n\n\n\n\n
Laws governing probate procedures are codified at Title 21\nof the Ohio Revised Code. The probate division of the court of common pleas (sometimes\nreferred to simply as the \u201cprobate court\u201d) in the county where the decedent was\ndomiciled at the time of death oversees probated estates in Ohio.<\/p>\n\n\n\n
Several factors, including the total value of the decedent\u2019s\nestate and how the decedent held title to property, determine whether probate\nof the estate is required. Certain transfers may be made outside of probate to\nindividuals identified in \u201cwill substitutes.\u201d These include instruments such as\nstatutory transfer on death designation affidavits (5302.22) or statutory\nsurvivorship deeds specifying a joint tenancy with right of survivorship\n(5302.17, 20). Property held in a trust is also exempt from administration in\nprobate. <\/p>\n\n\n\n
The court may also order an estate released from\nadministration if it meets certain requirements under R.C. 2113.03. These\ninclude estates with assets totaling less than $35,000.00, or, if the decedent\nleaves a surviving spouse, when the decedent devises all his or her assets to\nthe spouse in a valid will or, without a will, the surviving spouse is entitled\nto all the deceased spouse\u2019s assets under 2105.06 (2113.03).<\/p>\n\n\n\n
Administration of the estate commences when the court issues\nletters to the appointed fiduciary. A fiduciary, in the context of estate\nadministration, is the person appointed by the court to settle the estate. When\na will is probated, the court grants letters testamentary to the executor named\nin the will (2113.05). For an intestate estate, the court grants letters of\nadministration to an administrator in the order of priority established by R.C.\n2113.06. Applications for appointment as fiduciary of the estate should include\nwaivers of each person who has priority to administer, if applicable (2113.07).\n<\/p>\n\n\n\n
Within three months of appointment, the fiduciary is\nrequired to file inventories of the estate with the court (2115.02). A hearing\non the inventory is held within one month of filing (2115.16). Creditors have up\nto six months after the death of the decedent to present claims against the\nestate (2117.06). Apart from an executor authorized by a decedent\u2019s will,\napplication of the fiduciary for court approval is necessary to compromise and\nsettle claims on behalf of the decedent\u2019s estate (2117.05).<\/p>\n\n\n\n
Executors and administrators are responsible for paying the\ndecedent\u2019s debts, if any, by applying the assets of the estate in the order\nestablished at R.C. 2117.25. If the estate\u2019s assets are insufficient to pay\ndebts, the fiduciary may need to sell the decedent\u2019s property. Fiduciaries must\nobtain the court\u2019s permission to sell assets from the estate, unless authorized\nor directed by the decedent\u2019s will. <\/p>\n\n\n\n
Ohio is a dower state, meaning that a decedent\u2019s surviving\nspouse has an interest in the estate of the decedent\u2019s property acquired during\nthe marriage. The surviving spouse may file a petition for dower with the court\n(5305.02). When the court orders sale of real estate, dower may be taken by the\nsurviving spouse out of the proceeds of the sale (5305.15).<\/p>\n\n\n\n
To convey an interest in real property to a purchaser, the\nfiduciary must execute a deed in the statutory form for a conveyance by a\nfiduciary set forth at R.C. 5302.09. Deeds by executors and administrators\ncontain fiduciary covenants signifying that the grantor is the duly appointed,\nqualified, and acting fiduciary, and that he or she is authorized to make the\nsale and conveyance of the within described real property. Additionally, the\ngrantor covenants with the grantee that in the proceedings of the sale, he or\nshe has complied with statutory requirements (5302.10).<\/p>\n\n\n\n
A fiduciary deed includes identifying information about the\ngrantor, including the executing fiduciary\u2019s name and role, the county in which\nthe decedent\u2019s estate is opened in probate, and the case number assigned to the\nestate by the probate court. The deed should state the amount of consideration\nthe grantee is paying for the transfer of title, and, to properly title the\nproperty in the grantee, include the grantee\u2019s name, address, and vesting\ninformation.<\/p>\n\n\n\n
Deeds in Ohio require a recital of the grantor\u2019s source of\ntitle, including the prior instrument volume and page numbers. A full legal\ndescription of the subject parcel is required. Any restrictions on the property\nshould also be noted. The executing fiduciary must sign the deed in the\npresence of a notary public before recording in the county where the subject\nproperty is located.<\/p>\n\n\n\n
Once the estate\u2019s debts have been paid, the fiduciary may\napply to the court for an order of distribution (2109.36). Distributions are\nmade to the beneficiaries named in the decedent\u2019s will, or to heirs pursuant to\nOhio\u2019s laws of intestate succession. In Ohio, the statute of descent and\ndistribution (2105.06) establishes how intestate property is transferred to\nheirs. Fiduciaries in Ohio must obtain court approval or obtain the consent of\nall distributees whose interests may be affected by the distribution (2113.55).<\/p>\n\n\n\n
As evidence of a distribution of real property, the\nfiduciary must file an application requesting that the court issue a\ncertificate of transfer of an interest in real property (2113.61). Certificates\nof transfer are required except where distributions concern registered land or where\nrealty has been sold by the executor or administrator. <\/p>\n\n\n\n
The certificate is assigned a unique number by the court and\nis filed with the official probate records before the fiduciary is formally\ndischarged of duties by the court. An authenticated copy of the original is transmitted\nby the probate court to the recorder of the county wherein the affected real\nproperty is situated.<\/p>\n\n\n\n
The certificate of transfer recites the county of probate\nand the case number assigned to the estate, names the decedent, and indicates\nwhether he or she died intestate or testate. It includes the date of death and\ndescribes the real property the decedent owned at the time of death, including\na prior instrument reference and parcel identification number. In addition, it\nlists the name, address, and share of the decedent\u2019s interest being transferred\n(whether by devise, descent, or election) for each heir. If the distribution is\nsubject to a monetary charge in favor of the surviving spouse (dower), the certificate\nstates the amount of money that remains due and payable to the surviving spouse\nas found by the probate court (2105.061).<\/p>\n\n\n\n
The certificate is signed by the probate judge. When a copy\nis transmitted to the recorder, the authentication, signed by the probate judge\nand the deputy clerk, certifies that the document is a true copy, referencing\nthe original certificate number, and stating that the original is kept by the\nclerk as custodian of the official records of the probate court.<\/p>\n\n\n\n
Some Ohio counties also maintain a Torrens system of registered land. When an owner of registered land dies, the heir or devisee or fiduciary can apply to the probate court for registration of the subject title in the name of the heir or devisee (5309.45).<\/p>\n\n\n\n