Inheriting a Property Through Probate: What Do You Need to Know?
In my last article, Inheriting and Selling Inherited Real Estate in Ohio, I went over the various ways by which one might inherit property in Ohio, which includes inheriting through probate, through a trust, by transfer on death designation affidavits and by joint and survivorship deeds. I also outlined some of the things that should be considered depending upon the way the property is being inherited.
This article will focus on the probate process specifically, and will discuss:
(1) What it means for an Ohio property to be in probate;
(2) What takes place during probate;
(3) How to know if you may be in line to inherit an Ohio property through probate;
(4) How you can get more information about a specific probate case if you think you should be an heir; and
(5) How to ultimately take ownership of the Ohio property that is in probate so you can live in it, renovate it, and/or sell it.
TABLE OF CONTENTS
What Does it Mean for an Ohio Property to be in Probate?
What Takes Place During Probate?
How Do you Know if You Will Inherit Through Probate?
What if You Did Not Receive Notice of Probate but Think You Should Have?
How to Obtain More Information (including Party Contact Information) About the Probate
How to Take Ownership of an Ohio Property Through Probate
PLEASE NOTE THAT I AM NOT AN OHIO ATTORNEY AND NOTHING HEREIN SHOULD BE CONSTRUED AS LEGAL ADVICE. EVERY SITUATION IS DIFFERENT AND REQUIRES THE GUIDANCE OF A LICENSED AND EXPERIENCED OHIO ATTORNEY BEFORE TAKING ACTION. YOU ARE TAKING SIGNIFICANT RISK IF YOU PROCEED IN A PROBATE MATTER WITHOUT APPROPRIATE LEGAL ADVICE FROM A LICENSED ATTORNEY.
What Does it Mean for an Ohio Property to be in Probate?
When someone in Ohio who owns assets dies without a trust and, with respect to any real estate they owned, also dies without a transfer on death designation affidavit or a joint and survivorship deed, all of that person’s property (real estate, stocks, money in a bank account, jewelry, cars, or other items of value) will be subject to a court-managed process where a judge will oversee the administration and disposition of that property. This court-managed process is called probate.
An Ohio home or other property officially enters the probate process after a petition to start the probate process is filed with the probate court. This petition is sometimes referred to as an “Application to Probate Will.” An example image of the form provided by the court is included here:
You can find that form and other probate-related forms at the following link (however, you should not attempt to file anything without the guidance of a licensed Ohio attorney): https://probate.cuyahogacounty.gov/estforms.aspx
If the person who died (often referred to as the, “decedent”) had a valid will specifying who they wanted to manage their assets and affairs after their death, that specified person (called the “executor”), will typically be the one who petitions the court to start the probate process by filing the Application to Probate Will and submitting the decedent’s will to the court.
If the court cannot confirm the existence of a valid will, or if the will is not clear about who the decedent wanted to be the executor of their estate, the court will appoint someone to manage the probate process on behalf of the decedent.
A court-appointed manager of the decedent’s affairs through the probate process is called the, “administrator.” The court will often appoint a relative of the decedent to act as the administrator.
What Takes Place During Probate?
With the executor and/or administrator established, the probate process will proceed under the guidance and control of a probate court and judge where the ultimate goal is to either:
(a) make sure that the decedent’s wishes in their will are honored within the boundaries of what is legally permissible, or
(b) if there is no will, make sure the decedent’s assets are distributed to the decedent’s heirs in accordance with applicable law.
The probate process involves several steps to ensure that the above goals are accomplished:
(i) As mentioned, the court will determine whether the will submitted to the court is valid, and will approve of the executor or appoint an administrator;
(ii) The court will require that the executor or administrator, as the case may be, (a) informs the court of the identities of the decedent’s heirs and next of kin and (b) notifies those individuals in writing that the decedent’s assets are going through the probate process;
(iii) The court will require that any known creditors of the decedent be notified in writing as well;
(iv) Under certain circumstances, for example if the executor or administrator does not know where all of the heirs and next of kin are located or does not know who they are, the court will require public notice (typically through publication in local newspapers) of the probate so that anyone who has a right to notice and was not specifically notified will have an opportunity to see the public notice; and
(v) The executor or administrator will, with the approval of the probate court (or in some circumstances without needing the court’s approval if the will specifically authorizes a sale), take the necessary legal actions (e.g. preparing deeds) to (a) transfer the decedent’s assets to the individuals who are entitled to receive them as specified in the will (or as specified by law if there is no will or the will is invalid) or (b) sell those assets at a public or private sale.
Note that the above is a very high-level summary. A lot can happen during the probate process that is not detailed above, for example:
(a) If there was a will that was lost or destroyed, there is a legal process for establishing the contents of that missing will;
(b) Heirs and potential heirs can bring legal challenges into the probate process, challenging the appointment of an administrator, the proposed sale of the decedent’s assets, the sale process, etc; and
(c) Creditor’s of the decedent can bring their own claims into the probate process to try to claim some or all of the decedent’s assets to pay off debts.
These are just some examples, but the point is that the process is by no means always, or even often, straightforward and simple.
How Do you Know if You Will Inherit Through Probate?
Under Ohio law, and specifically Section 2107.19 of the Ohio Revised Code (the, “ORC”), within two weeks from the date that the decedent’s will is submitted to the probate court, written notice which explains that the probate is taking place must be sent.
This notice is required to be sent not only to the surviving spouse of the decedent (if any) and any persons specifically named in the will as heirs, but also to every person who would be entitled to inherit from the decedent if the decedent did not have a will. In other words, the law requires a very broad notification process when a decedent’s assets are going through probate.
Here is an example of what this notice may look like if you receive it:
When the notice is sent to someone who is named in the will as a beneficiary (i.e. someone who is entitled to receive a share of the decedent’s assets), the law requires that the notice specifically inform that the person that they are a beneficiary.
Accordingly, this notice would be the first and best place to look to determine if you will be inheriting real estate or other assets from the decedent through probate.
What If You Did Not Receive Notice of the Probate but Think You Should Have?
If you did not receive the probate notice described above, or you did receive it but were not named as a beneficiary and you think you should be a beneficiary (i.e. one of the people who will be inheriting some of the decedent’s assets), it may be helpful to communicate directly with the attorneys and executor/administrator managing the probate process.
Luckily, you can often find contact information for the attorneys and executor/administrator by completing some online research that I describe in the next section below. This information can include phone numbers and email addresses for the executor/administrator and the lawyers involved with the probate.
In some circumstances it can be very important to do this research and find out who to contact. It is possible that the court, the executor/administrator, and the lawyers involved simply could not find you when they were trying to notify everyone who was an heir to the decedent.
As described above, sometimes heirs cannot be located and all that is done to notify those heirs is the placement of public notices in local newspapers. You of course may never see these public notices. You certainly would not want to miss out on inheritance under these circumstances.
Obtaining More Information About the Probate Through Online Research
The Ohio probate court that will have jurisdiction over the decedent’s estate will typically be located in the county in which the decedent was living.
If you know which Ohio county the decedent was living in (or can find out), you can then search that county probate court’s docket. The docket will typically include the documents filed in the case, the names of the attorneys and parties involved, contact information for the attorneys and the executor/administrator, any decisions that have been made by the court, and a history of all of the events in the case.
So how exactly do you do this online research? Here is an example:
Say that I believe I should be inheriting a house from a decedent who died while living in Cuyahoga County, OH, but I never received notice of the probate confirming that I am an heir.
If I wanted to get in touch with the parties who are managing the probate to find out why I was not notified, I would start by going to the Cuyahoga County Probate Court’s website. You can find this through a simple google search:
When you click on the probate court’s website, the home page has a tab called, “Docket and Index Search,” as you can see below:
After clicking the Docket and Index search tab, you will be able to scroll down to the “Search by Party” section. There you can enter the name of the decedent and then click “Search by Party” at the bottom.
This will bring up a list of all cases that are associated with a decedent with that name. Using a very generic name as an example (e.g. here I used, “Robert Smith”), you can see what the results page looks like:
By clicking into one of the results, I will be able to see several tabs at the top of the page that I can click on. One of those tabs is labeled “Docket” as shown below:
In the Docket tab, you will be able to see the events that have taken place in the case, the dates they took place and will be able to click on and open documents that have been filed in the case.
As you can see in the image above, there is also a tab labeled, “Parties.” If you click on that tab, you will see the names and contact information for parties involved in the case.
With this contact information, you can reach out directly to the parties in the case and ask why you were not notified of the probate. This is a potentially very helpful step to find out if a mistake was made and you should have been notified.
Of course, it is possible that you were wrong, and the decedent did not name you as an heir and you are not entitled to any portion of their estate. However, through a relatively limited bit of online research and a few emails, you should be able to confirm whether this is the case.
While it is beyond the scope of this article, it is worth noting that with the help of a lawyer under some circumstances, the probate process can be challenged. If you believe your rights to inheritance are being violated, it makes sense to reach out to a licensed Ohio attorney to advise you about your rights.
How to Take Ownership of an Ohio Home Inherited Through Probate
Ohio law permits the executor/administrator to follow the language of the will with respect to the distribution of the decedent’s assets. In other words, if the will specifically instructs the executor/administrator to sell an Ohio home or property rather than transfer it to the heir(s) then, generally speaking and in accordance with Section 2113.39 of the ORC, the executor/administrator will sell the property, and the money rather than the property itself will go to the heirs.
Similarly, if the will specifically directs the executor/administrator to transfer an Ohio home or property to one or more of the heirs then there is good probability that will happen.
If the will is silent regarding what is to be done with an Ohio home or property then the executor/administrator can seek the approval of the probate court and the heirs to (i) distribute the Ohio home or property directly to one or more heirs or (ii) to sell the home or property and distribute the sale proceeds to the heirs.
In short, the best path for an heir who wants to take ownership an Ohio home through probate is when the will specifically directs the executor/administrator to transfer the home to that specific heir. If the will directs the executor/administrator to sell the property, or if the will is silent on the matter, approvals are needed from the court and other heirs which can add potential challenges and complexities to taking ownership.
PLEASE NOTE THAT I AM NOT AN OHIO ATTORNEY AND NOTHING HEREIN SHOULD BE CONSTRUED AS LEGAL ADVICE. EVERY SITUATION IS DIFFERENT AND REQUIRES THE GUIDANCE OF A LICENSED AND EXPERIENCED OHIO ATTORNEY BEFORE TAKING ACTION. YOU ARE TAKING SIGNIFICANT RISK IF YOU PROCEED IN A PROBATE MATTER WITHOUT APPROPRIATE LEGAL ADVICE FROM A LICENSED ATTORNEY.
