Probate is the legal process of settling a decedent’s estate and distributing the remaining assets to beneficiaries. Distributions of a decedent’s property are made according to the terms of a probated will (for testate estates) or pursuant to Ohio’s laws of intestate succession (for intestate estates). For the provisions of a will to become effective, the will must be admitted to probate.
Laws governing probate procedures are codified at Title 21 of the Ohio Revised Code. The probate division of the court of common pleas (sometimes referred to simply as the “probate court”) in the county where the decedent was domiciled at the time of death oversees probated estates in Ohio.
Several factors, including the total value of the decedent’s estate and how the decedent held title to property, determine whether probate of the estate is required. Certain transfers may be made outside of probate to individuals identified in “will substitutes.” These include instruments such as statutory transfer on death designation affidavits (5302.22) or statutory survivorship deeds specifying a joint tenancy with right of survivorship (5302.17, 20). Property held in a trust is also exempt from administration in probate.
The court may also order an estate released from administration if it meets certain requirements under R.C. 2113.03. These include estates with assets totaling less than $35,000.00, or, if the decedent leaves a surviving spouse, when the decedent devises all his or her assets to the spouse in a valid will or, without a will, the surviving spouse is entitled to all the deceased spouse’s assets under 2105.06 (2113.03).
Administration of the estate commences when the court issues letters to the appointed fiduciary. A fiduciary, in the context of estate administration, is the person appointed by the court to settle the estate. When a will is probated, the court grants letters testamentary to the executor named in the will (2113.05). For an intestate estate, the court grants letters of administration to an administrator in the order of priority established by R.C. 2113.06. Applications for appointment as fiduciary of the estate should include waivers of each person who has priority to administer, if applicable (2113.07).
Within three months of appointment, the fiduciary is required to file inventories of the estate with the court (2115.02). A hearing on the inventory is held within one month of filing (2115.16). Creditors have up to six months after the death of the decedent to present claims against the estate (2117.06). Apart from an executor authorized by a decedent’s will, application of the fiduciary for court approval is necessary to compromise and settle claims on behalf of the decedent’s estate (2117.05).
Executors and administrators are responsible for paying the decedent’s debts, if any, by applying the assets of the estate in the order established at R.C. 2117.25. If the estate’s assets are insufficient to pay debts, the fiduciary may need to sell the decedent’s property. Fiduciaries must obtain the court’s permission to sell assets from the estate, unless authorized or directed by the decedent’s will.
Ohio is a dower state, meaning that a decedent’s surviving spouse has an interest in the estate of the decedent’s property acquired during the marriage. The surviving spouse may file a petition for dower with the court (5305.02). When the court orders sale of real estate, dower may be taken by the surviving spouse out of the proceeds of the sale (5305.15).
To convey an interest in real property to a purchaser, the fiduciary must execute a deed in the statutory form for a conveyance by a fiduciary set forth at R.C. 5302.09. Deeds by executors and administrators contain fiduciary covenants signifying that the grantor is the duly appointed, qualified, and acting fiduciary, and that he or she is authorized to make the sale and conveyance of the within described real property. Additionally, the grantor covenants with the grantee that in the proceedings of the sale, he or she has complied with statutory requirements (5302.10).
A fiduciary deed includes identifying information about the grantor, including the executing fiduciary’s name and role, the county in which the decedent’s estate is opened in probate, and the case number assigned to the estate by the probate court. The deed should state the amount of consideration the grantee is paying for the transfer of title, and, to properly title the property in the grantee, include the grantee’s name, address, and vesting information.
Deeds in Ohio require a recital of the grantor’s source of title, including the prior instrument volume and page numbers. A full legal description of the subject parcel is required. Any restrictions on the property should also be noted. The executing fiduciary must sign the deed in the presence of a notary public before recording in the county where the subject property is located.
Once the estate’s debts have been paid, the fiduciary may apply to the court for an order of distribution (2109.36). Distributions are made to the beneficiaries named in the decedent’s will, or to heirs pursuant to Ohio’s laws of intestate succession. In Ohio, the statute of descent and distribution (2105.06) establishes how intestate property is transferred to heirs. Fiduciaries in Ohio must obtain court approval or obtain the consent of all distributees whose interests may be affected by the distribution (2113.55).
As evidence of a distribution of real property, the fiduciary must file an application requesting that the court issue a certificate of transfer of an interest in real property (2113.61). Certificates of transfer are required except where distributions concern registered land or where realty has been sold by the executor or administrator.
The certificate is assigned a unique number by the court and is filed with the official probate records before the fiduciary is formally discharged of duties by the court. An authenticated copy of the original is transmitted by the probate court to the recorder of the county wherein the affected real property is situated.
The certificate of transfer recites the county of probate and the case number assigned to the estate, names the decedent, and indicates whether he or she died intestate or testate. It includes the date of death and describes the real property the decedent owned at the time of death, including a prior instrument reference and parcel identification number. In addition, it lists the name, address, and share of the decedent’s interest being transferred (whether by devise, descent, or election) for each heir. If the distribution is subject to a monetary charge in favor of the surviving spouse (dower), the certificate states the amount of money that remains due and payable to the surviving spouse as found by the probate court (2105.061).
The certificate is signed by the probate judge. When a copy is transmitted to the recorder, the authentication, signed by the probate judge and the deputy clerk, certifies that the document is a true copy, referencing the original certificate number, and stating that the original is kept by the clerk as custodian of the official records of the probate court.
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).
The information provided here is not a substitute for legal advice. Consult an attorney licensed in the State of Ohio with questions regarding fiduciary deeds and probate procedures in that state, as each situation is unique.