Ancillary Probate in Ohio: What is It, and Can You Avoid It?
These days, people move around more than ever. You might buy a house in Dayton, get transferred out of state for work, and continue to rent out the Ohio property. Or you might spend most of your life in Ohio, only to spend your later years living with an adult child in a neighboring state. Whatever the reason, there are many people who live outside of Ohio, but continue to own real property in the state. When they die, that real property needs to be disposed of. Ancillary probate in Ohio is one mechanism to deal with real property whose owner died outside of the state.
Ancillary probate is addressed in Chapter 2129 of the Ohio Revised Code. If a resident of another state dies owning property in Ohio, someone must apply to be appointed ancillary administrator in the county in Ohio where property of the deceased person (decedent) is located. If the decedent had a will, the person named as the executor in the will is generally eligible to serve as the ancillary administrator of the Ohio estate. If the decedent did not have a will (they died intestate), the ancillary administrator must be a resident of the county in which the property is located.
As a practical matter, ancillary probate is only necessary to administer the decedent’s interests in real property. Personal property such as furniture, art, jewelry, cars, etc. that are in Ohio should be gathered by the personal representative of the estate in the state where the deceased lived and administered by that state's probate court.
Real estate, of course, cannot be picked up and moved! Even if there is a probate case in the state and county where the deceased last lived, real property will need to be probated in the county where it is located. This process is ancillary (supplementary) to the main probate matter where the deceased resided, also called the "domiciliary probate" case.
The Ancillary Probate Process
In Ohio, ancillary probate typically starts when an interested person files authenticated copies of documents from the domiciliary probate matter, such as the will, with an Ohio probate court. In some cases, there may not be a domiciliary estate. In that case, the probate court may appoint the person named to serve as executor in the will, if they qualify under the Ohio probate statutes, or a person who is a resident of the county where the property is located.
As you can probably imagine, conducting a probate matter in Ohio from outside the state can be difficult, time-consuming, and costly. Unfortunately, the decedent's Ohio real property needs to be transferred to the beneficiaries or sold, so, except as noted below, there is no alternative to filing an ancillary probate case for real estate owned in the decedent’s name. By the same token, ancillary probate is also the forum to resolve any disputes regarding the property.
Alternatives to Ancillary Probate in Ohio
Ohio Revised Code 2113.61 provides that if no ancillary proceeding has been filed in Ohio, an executor or administrator of a proceeding in another state can apply for a certificate of transfer of the real property in the probate court for the Ohio county in which the property is located. If there is property in more than one county, documents may be filed in one county with authenticated copies being filed in the other(s). A certificate of transfer, like a deed, establishes title of the property in the new owner or owners. A certificate of transfer can be used whether the decedent died with a will or without one. However, be aware that despite the language of the law, some Ohio counties will require an ancillary probate proceeding to be opened in order to transfer property.
Avoiding the Need for Ancillary Probate with Planning
If you own property in multiple states, you can avoid the need for ancillary probate in the future. The answer is to create a simple living trust and place ownership of all your real property (and any other assets you wish) in the trust. You continue to use and enjoy the property during your life, just as if it were in your name. At your death, the property need not go through probate in Ohio or anywhere else; your successor trustee can simply transfer it to your intended beneficiaries.
If you are interested in learning about the use of trusts to transfer real property, or need to open an ancillary probate case in Ohio, contact an experienced estate planning and probate attorney.
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