The probate process is full of language that is widely assumed to mean one thing, when it technically means something different or narrower. Executor duty generally consists of administering a deceased person’s (decedent’s) estate. In fact, an executor is the title given to someone tasked with managing the estate of a person who died with a will (testator).
Someone who died without a will is said to have died “intestate” and the person in charge of their estate is called an “administrator.” Administrators and executors collectively are called “personal representatives.”
Similarly, many people assume that an “heir” is someone who inherits from a decedent. What the term really means is a person who would be entitled by law to inherit from someone who died intestate, often a child or grandchild, but perhaps a parent, sibling, aunt, uncle, or cousin. (Spouses, while they have priority to inherit, are not considered “heirs.”) “Beneficiary” is the technical term for someone who inherits under a will or trust. An heir need not be a beneficiary (like a child who has been disowned). A beneficiary need not be an heir (like a friend named in a will to receive a bequest).
Now that we’ve gotten the terminology straight, on to the central question of this blog post: What is executor duty to identify possible heirs?
Probate attorneys are often asked about executor duty to locate heirs. Since the need to find heirs applies to both executors and administrators, from here on out we will use the term “personal representative” to refer to the person in charge of the estate.
Whether or not there is a will, the personal representative must make an effort to locate heirs. If there is no will, heirs need to be notified of the probate of the estate so that they can receive their share of the inheritance. If there is a will, heirs need to be notified either so that they can receive their bequests under the will or have the opportunity to challenge the will if there is cause to do so.
Usually, locating heirs is not a problem; close relatives are usually known to the personal representative and their addresses easy to locate. Sometimes, however, things get a little more challenging. An heir could be estranged from the family or living off the grid. A deceased parent may have lost touch years ago with children from a previous relationship whose existence is only dimly known to the personal representative. What is a personal representative to do in those circumstances?
If a personal representative knows of the existence of a possible heir, he or she should make reasonable attempts to identify and locate that person. A simple internet search, or inquiry to an older family member, might yield the information needed to send notice of the probate action. There are professional heir location services available if the name of an heir is known.
If an address is located, the personal representative should send a form notifying the heir of the probate of the estate by certified mail with a return receipt requested. In this way, the personal representative will be able to prove that the heir either received notice, or that a reasonable attempt was made to notify the heir.
Personal representatives are not required to move heaven and earth to locate an heir; only to use “reasonable diligence” to do so. If the personal representative has tried to reach an heir, or is unaware of an address at which to do so, he or she can indicate that on a Certificate of Notice of Service filed with the probate court.
If an heir cannot be located and notified of a probate estate, what happens to their share of the inheritance? Under Ohio law, if a sum of money to be distributed to an heir remains unclaimed prior to the filing of a final account, the court may order the funds to be turned in to the county treasury. Alternatively, the court may order the personal representative of the estate to invest the money as the court directs for a period of up to two years. The investment is made in the name of the probate judge of the court and is subject to the order of the judge and the judge’s successors in office.
If you have been named as the executor of a will, or appointed the administrator of an estate, you should have the services of an experienced probate attorney. An attorney who regularly deals with estates can help you to ensure that you have taken reasonable measures to locate and notify any heirs who might have a claim to the estate and fulfill your executor duty.