Consent Sales of Real Estate Now Permitted in Ohio Guardianship Cases
If you are serving as the guardian over the property of a legally incapacitated adult, you are well aware of the responsibilities involved in managing your ward's property. Under Ohio law, guardians are now able to enter into consent sales of real estate in guardianship cases, if the sale of the ward's interest in real property is in the best interest of the ward. This ability facilitates the process of selling real estate for the ward's benefit.
There are four requirements to allow a consent sale to take place. First, the ward's spouse, if any, and any person entitled to inherit the real property from the incapacitated person must consent to the sale of the property. This consent must be in writing and filed with the probate court. Most county probate courts have specific forms for this purpose.
Second, when all necessary consents are filed, a bond must be executed in an amount that the probate court deems sufficient. Third, the sale of the real property must be at least 80% of the appraised value of the property as determined within the two years prior to the sale.
Lastly, in order for a consent sale of real estate to take place in a guardianship case, neither the ward's spouse, nor any of the ward's next of kin, may be a minor.
If all of the required conditions are met, the guardian may sell the ward's interest in real property at public or private sale.
What if All Interested Parties Don't Consent to the Sale of Real Property?
The option of a consent sale of a ward's real property expedites the process and avoids the time and expense involved in a court proceeding. However, if one of the required parties to a consent sale of a ward's real estate does not give written consent, the guardian can still get authority to sell all or part of the ward's interest in the real property.
Under these circumstances, the guardian would need to file a land sale action. This requires the filing of a complaint that includes a legal description of the property; a statement of the ward's interest in the property; a recital of all adverse interests in the real property, including any mortgages or liens; a recital of facts showing the reason for the sale; and any other facts that are pertinent to the situation. Appropriate reasons for sale of real property would include the need to pay for the ward's education or to pay off the ward's debts. A ward's real property might also be sold to pay off liens on the property or to prevent waste of the real property, or simply to make a better investment of assets that are tied up in the real property.
Any person required to give consent for a consent sale of a ward's real property is entitled to notice of a land sale action. Lienholders and any other person with an interest in the real property (except for creditors) are also entitled to notice. They may, if they choose, object to the sale in their answer. A guardian ad litem is typically appointed in land sale actions to represent the interests of the ward; the guardian who brought the action cannot represent the interests of the ward in a matter in which the guardian's interests may be adverse to those of the ward.
Proceeding With a Sale of Ward's Property
Given the notice and hearing requirements of an action for land sale, guardians should be aware of the option of a consent sale, particularly if they believe that the ward's spouse and heirs would be in agreement with a sale. The necessary steps to obtain consent are fairly straightforward; however, if a guardian needs assistance in proceeding with a consent sale of a ward's real estate, an experienced probate attorney can help secure the needed consents and file them with the probate court.
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