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, any interested person (usually, but not necessarily, an heir) can apply to be ancillary administrator in any county in Ohio where property of the deceased person (decedent) is located.

As a practical matter, this almost always refers to real property. Personal property such as furniture, art, jewelry, cars, etc. in Ohio will probably be gathered by the personal representative of the estate in the state where the deceased lived, and dealt with in 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 ancillary proceeding is managed as if the deceased person had been an Ohio resident, and goes forward like any Ohio probate matter.

As you can probably imagine, conducting a probate matter in Ohio from outside the state can be difficult, time-consuming, and costly. Unfortunately, if the decedent's Ohio real property needs to be sold as a part of the probate process, there is no alternative to filing an ancillary probate case. By the same token, ancillary probate is necessary if there are disputes regarding the property that need to be resolved by the probate court.

However, sometimes all that needs to happen is to transfer the Ohio real property into the ownership of the decedent's heirs or intended beneficiaries. When that is the case, there are simpler and less expensive alternatives to ancillary probate in Ohio.

Alternatives to Ancillary Probate in Ohio

If the decedent died intestate (without a will), one option for transferring the property is an "affidavit for transfer of real estate inherited." Essentially, Ohio allows for the recording of an affidavit executed by the decedent's next of kin or an heir at law, or by two Ohio residents with personal knowledge of the facts of the matter. The affidavit must contain certain information required by Ohio law: the date of death; place of the decedent's residence at the time of death; statement that the decedent died without a will; names of heirs at law or next of kin who will inherit the real estate; and their relationship to the deceased. The affidavit must also state the portion of the Ohio real property inherited by each of them.

If the affidavit complies with legal requirements, the county auditor has to transfer title to the real property as the affidavit states. The county recorder must then record the affidavit just as if it were an actual deed. However, if the decedent had a valid will, an affidavit for transfer of real estate inherited is not an option.

Another possibility is to obtain a certificate of transfer. 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 an affidavit, 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 revocable or irrevocable 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.

Categories: Probate Attorneys