If you have lost a loved one, the last thing you want to deal with is a complicated legal process and bureaucracy as you sort out the loved one’s affairs.  Unfortunately, that is exactly what many people will face in the wake of a death in their family as it quickly becomes necessary to manage the assets they have left behind.

This article is meant to provide background and explanation of the different steps you might need to take if you will be managing and trying to sell real estate that was left behind by a family member.   Those steps will differ depending on how your deceased family member organized their estate, and some scenarios will be more complicated than others.

The goal here is to give you an overview of what you may be facing, help you understand what questions to ask, and help you plan appropriately for the sale of inherited real estate. 

This overview starts with providing a better understanding of how someone establishes authority over a property that is going through the inheritance process in Ohio, and what the inheritance process looks like, which will entirely depend on whether the property is (1) going through probate, (2) held in a trust, (3) subject to a transfer affidavit, or (4) titled in a joint and survivorship deed. 

I then discuss (i) what to do when there are multiple heirs and disagreement about whether or not to sell the inherited Ohio home (ii) considerations about next steps to take if you will be the one with authority to sell the Ohio home, and (iii) what to do if you will not have direct authority to sell the inherited property.  

PLEASE NOTE: None of the below should be construed as legal advice.  We are not Ohio lawyers and are not licensed to provide legal advice in Ohio. We have gathered the information below from personal experience over the years working with sellers of inherited property, but it should be viewed only as our personal experience and should not be used as a basis for taking specific actions without obtaining advice from a licensed attorney.

TABLE OF CONTENTS

Establishing Authority to Sell an Inherited Ohio Home:

• Is the Ohio Property You Want to Sell in Probate?

  • Were You Appointed to Manage the Probate Process?

  • What if You Were Not Appointed to Manage the Probate Process?

  • You are the Executor or Court-Appointed Administrator.  Now What?

• Is the Ohio Property You Want to Sell in a Trust?

  • Does the Trust Give You the Authority to Sell the Ohio Property?

  • If You Are the “Successor-Trustee,” You Should Have Authority to Sell the Property.

  • Does the Trust Say You Are the Beneficiary/Heir Inheriting the Property?

• Is the Ohio Property Subject to a Transfer on Death Designation Affidavit?

• Is the Ohio Property Subject to a Joint and Survivorship Deed?

What if I Am Not the Only Heir/Beneficiary to the Ohio Home?

If You Do Have Authority to Sell, What Should You Do? 

If You Do Not Have Authority to Sell, What Should You Do?

• If the Ohio Property is in Probate and You Do Not Have Authority to Sell, What Should You Do?

• If the Property is in a Trust and You Do Not Have Authority to Sell, What Can You Do?

• If There is a Transfer on Death Designation Affidavit or a Joint and Survivorship Deed and You Do Not Have Authority to Sell, What Should You Do?

How is Authority to Sell an Inherited Home Established?

If you are expecting to inherit an Ohio home and then sell it, the first thing you will want to understand is how and whether the title (think of “title” as the ownership) of the Ohio property will be transferred to you.  Title must be transferred to you in order for you to have the legal right to sell the home. 

To figure out whether title to the Ohio home will be transferred to you, you will need to know:

(1) whether the property will go through (or has already gone through) what is called, “Probate,” (a legal process explained below that could give you the right to sell the inherited Ohio home) or;

(2) whether the Ohio home is held in a trust, which you can think of as both a document and a tool that keeps the property out of the probate process and allows title to transfer to you more efficiently; or

(3) whether the family member who died had set up a transfer on death designation affidavit for the Ohio home; or

(4) whether you the property is held through a joint and survivorship deed.  

Each of these possibilities will result in different paths that you will need to follow in order to sell your inherited Ohio property. 

For that reason, it is important to have a general understanding of each potential path so that you will know which one applies to you, and then of course to consult with a licensed attorney for more detailed questions about your situation.

Here we will provide the basics of those four possibilities, all of which we have dealt with as Ohio cash buyers working with sellers of inherited properties in Cuyahoga, Summit, Portage, Lake, Medina and Geauga counties. 

Is the Ohio Property You Want to Sell in Probate?

If the person from whom you are inheriting the property:

(a) died without a will; or

(b) had a will but did not ALSO have a trust; and

(c) did not set up either a transfer on death designation affidavit or a joint and survivorship deed for the property;

then the property may need to go through probate before you will have the authority to sell it (check with a licensed Ohio attorney). 

Probate is a formal legal proceeding, meaning a court (specifically a probate court in the same county where the person who died was living) is involved and oversees the probate process. 

The probate court’s job is to make sure that the instructions in a will relating to inheritance of the property are followed or, if no will exists, the inheritance process is completed in accordance with Ohio law. 

Were You Appointed to Manage the Probate Process?

If the decedent (the person who died) had a will, the will may name the exact person(s) who the decedent wanted to oversee the probate process and transfer ownership of the inherited home with the blessing of the probate court. 

This person is called the, “executor,” and will typically be accepted by the probate judge as the manager of the probate process on behalf of the decedent. 

If the decedent did not have a will, the court will appoint someone to manage the probate process and transfer ownership of the property.  When the court has to appoint someone because there was no will or the will does not appoint someone, the court appointed probate manager is called the, “administrator.”

Therefore, you will want to confirm whether you are either the executor or the administrator with the actual authority to transfer the Ohio property. 

What if You Were Not Appointed to Manage the Probate Process?

If the property is going through probate but you are not the appointed executor or administrator, this means someone other than you has the actual authority to transfer the Ohio home to the heirs or sell the Ohio home to a third party. 

If you are not the appointed executor or administrator, scroll down to the section entitled, “If You Do Not Have Authority to Sell, What Should You Do?” for more information.

I Am the Executor or Court-Appointed Administrator.  Now What?

If you have been appointed as the executor or administrator of the estate, you do have the authority to sign the deed that will transfer ownership of the property to a buyer, BUT you can only do this with the permission of the probate court judge unless there is a will which specifically authorizes you to sell the property. 

The judge will be looking for a few acceptable scenarios before they will allow you to sell the Ohio property if there is no will that expressly authorizes the sale.  The following are acceptable scenarios as set forth in Ohio Probate Code Section 2127.04:

(1)     All of the beneficiaries of the estate have agreed to the sale of the Ohio property; OR

(2)     That all of the following is true:

(i) At least 50% of the beneficiaries have agreed to the sale; AND

(ii) No person who is entitled to at least 25% of the property has filed an objection to the sale; AND

(iii) The judge agrees that the sale is in the best interest of the estate.

(3)     If neither #1 or #2 are true, the judge may also accept the following scenario:

(i) No heir is entitled to more than 10% of the decedent’s interest in property; AND

(ii) No group of heirs who are entitled to more than 25% of the decedent’s interest in the Ohio property have objected to the sale; AND

(iii) The judge agrees that the sale is in the best interest of the estate.

If any of the above three scenarios are true, then you can be given permission by the probate judge to sell the Ohio property. 

Keep in the mind that the judge can also order a sale of the property when the beneficiaries object if the judge believes that the sale is in the best interest.

Please make sure that you consult with an attorney about these rules, as legal advice is crucial in navigating the rules and regulations of the probate court and the probate process.

After I finish discussing other possible scenarios you may be facing in the path to establishing authority to sell the Ohio property (trusts, transfer on death designation affidavits, and joint and survivorship deeds) I will discuss what else to consider doing once you have confirmed your authority.    

Is the Ohio Property You Want to Sell in a Trust?

A trust is a document that the decedent (the person who died) may have prepared during their lifetime which:

(1) establishes the beneficiaries (the heirs) who will inherit the decedent’s assets, including real estate held by the trust;

(2) allows the heirs and assets to avoid going through probate court; and

(3) designates the person who is in charge of the assets of the trust (called the, “trustee,” or “successor trustee”) when the decedent is no longer alive.

Not all trusts are the same. 

In fact, they can vary significantly in their terms, and they allow flexibility for the creator of the trust (called the, “settlor,” or “grantor”) to decide what will happen to each of their assets when they die. 

For example, the decedent might decide that one heir will receive money in a bank account while another heir will receive real estate.  Alternatively, the decedent might decide that both heirs will receive all of the decedent’s assets in a 50-50 split.   

Does the Trust Give You the Authority to Sell the Property?

To determine whether you will have the authority to sell a property that is held in a trust you will want to know:

(1) Did the decedent make you the successor-trustee of the trust with authority to sell the property?  If so, there will be a specific section of the trust document naming you as the successor-trustee; OR

(3) Does the trust state that you are inheriting the property that you want to sell (i.e. that you are the beneficiary entitled to the property)? 

If You Are the Successor-Trustee, You Should Have Authority to Sell the Property

If you are the successor-trustee of the trust, you will be in charge of carrying out the terms of the trust.  One of those terms could include directions from the decedent regarding what to do with the property you are interested in selling. 

The trust might instruct you, as successor-trustee, to sell the property and distribute the proceeds to the beneficiaries.   If the trust includes such instructions then your authority is clear, and you can proceed with pursuing the sale process. 

However, the trust might also direct you to distribute the Ohio property to specific heirs/beneficiaries.  If this is the case, you would not be able to sell the property to any third party who makes a good offer.  It would ultimately be the heirs’ decision whether to keep or sell the property after you carry out your obligation to transfer the property from the trust to them.    

It should be noted that it is not uncommon for the successor-trustee to also be one of the beneficiaries/heirs to the trust assets. 

Does the Trust Say You Are the Beneficiary/Heir Inheriting the Property?

If the trust document says that you are the beneficiary who is receiving the property you want to sell, you will have to wait a specific amount of time set forth by law before you can receive title to the property from the trust. 

This period of time is set forth in laws designed to give time to those who might want to object to the distribution of the trust’s assets.  Once that time period has elapsed, the successor-trustee will then be able to transfer the property title to you, after which you can pursue the sale process.    

Is There a Transfer on Death Designation Affidavit?

The Transfer on Death Designation Affidavit is a simple form that can be filled out and recorded with the County in which the property is located.  It allows a person who owns real estate to formally establish who will receive the property upon their death and allows the direct transfer of the property to that established person when death occurs. 

By recording this form with the County, the property will avoid probate upon the owner’s death, even if they do not have a will or a trust. 

How Do I Know If a Transfer on Death Designation Affidavit Was Recorded?

In the distant past, documents recorded with the County had to be searched for in person at the County Recorder’s office.  Now, however, most County governments have systems set up to search for these documents online. 

For example, if you were to go to the Summit County, OH Recorder’s website, as long as you have the name of the deceased owner, or the parcel number for the property (which you can get by entering the property address into a search on the County Assessor’s website), you can search with this information and pull up all documents that have been recorded with the County related to the property. 

If a Transfer on Death Designation Affidavit was recorded, you should be able to find it when you review the above search results.  Note that online records are not always perfect, but the counties do generally try to be thorough. 

The Transfer on Death Designation Affidavit Names Me as Beneficiary.  Now What?

If you have found or were given a Transfer on Death Designation Affidavit associated with the property, you will be able to review this document and see exactly who is named as the beneficiary of the property.  

If that person is you, you need to sign a simple document (called an “affidavit of confirmation”) and record that together with the death certificate of the decedent to complete the transfer of ownership to you. 

YOU SHOULD NOT TRY TO DO ANY OF THIS ON YOUR OWN WITHOUT THE GUIDANCE OF A LICENSED OHIO ATTORNEY.  MAKING A MISTAKE CAN CAUSE SERIOUS HEADACHES.

Is There a Joint and Survivorship Deed?

Like a Transfer on Death Designation Affidavit, a Joint and Survivorship Deed allows the property to avoid probate even if there is no trust or will. 

Unlike a Transfer on Death Designation Affidavit, which does not give the named beneficiary any right to the property during the decedent’s life, with a Joint and Survivorship Deed everyone named in the deed has rights to the property during the lifetime of the other people named in the deed. 

The Joint and Survivorship Deed is thus commonly used with married couples where the couple wants to ensure that when one of them dies, the other will automatically inherit the entire property without any need to go to probate court or otherwise risk disputes or questions over ownership. 

While a married couple is the most common scenario for this type of deed, it can be used whenever more than one person is being given rights to use/occupy a property simultaneously. 

I Am the Survivor Under a Joint and Survivorship Deed.  Now What?

If you are the survivor under a Joint and Survivorship Deed, you need to formalize your ownership of the whole property. 

There are two options to formalize the change in ownership when one party to the joint and survivorship deed dies: (1) by recording a Certificate of Transfer, or (2) by recording an affidavit together with a copy of the death certificate. 

You should consult an attorney to advise you about the proper documents to use and how to record them properly.   

What if I Am Not the Only Heir/Beneficiary to the Ohio Home?

This is a very common situation and, depending upon the relationship between the heirs to an estate, the process can either be incredibly smooth or incredibly painful. 

If you look back at the section entitled, I Am the Executor or Court-Appointed Administrator.  Now What?, for example, you will see that in each scenario where the probate court judge can approve of a sale, the judge requires that heirs entitled to a certain percentage of the property must agree to the sale. 

If heirs entitled to a certain percentage of the property do not agree, the judge will not authorize the sale. 

We have seen situations where one of the heirs to an Ohio property lives out of state and another heir is living in the property.  The heir living in the home does not want to sell and the heir living out of state wants to sell and receive the cash. 

Alternatively, one heir may want to move into the house while the other(s) want to sell, or one heir may want to keep the house in the family while another wants to sell. 

So, what happens in these scenarios? 

Heirs Can Force a Sale of Ohio Property if They Own Enough

In specific scenarios, it is possible for heirs to force the sale of an inherited property despite the objections of other heirs.  The most certain of those options (but potentially the most expensive), filing a partition action, is discussed in the next section. 

If you look back to the probate code sections cited above (specifically, Ohio Probate Code Section 2127.04) you will see that in one scenario, if at least 50% of the beneficiaries agree to a sale, the judge can approve of a sale as long as no heir who is entitled to at least 25% of the Ohio property files an objection.

Therefore, if there are five heirs who are each entitled to a 20% interest in the Ohio property, and four agree to sell while the fifth objects, the judge can still decide to approve of the sale because more than 50% of the heirs agree to sell and an heir entitled to only a 20% interest is objecting. 

This does not mean the judge will approve of the sale, but the judge can approve the sale with the above set of facts.   This scenario shows you how in some situations, even when there is an objecting heir, a sale can be pushed through by the other heirs. 

Alternatively, where there are four or fewer heirs and each is entitled to an equal percentage of the property (meaning if there are four heirs each heir is entitled to at least 25% of the property), if one heir objects to the sale, that objecting heir may be able to prevent the sale absent further legal action or negotiated agreement from the other heirs. 

Heirs Can Force a Sale of Ohio Property by a Partition Action

If you are an heir who desires to sell, you cannot force a sale in a scenario described in the prior section, and you are bumping up against an objecting heir, you do have a legal solution: the partition action. 

A partition action is a legal action (essentially filing a lawsuit) by one owner of a property which is designed to force co-owners of the same property to sell. 

Any co-owner of real estate can file a partition action.  This should always be done with the help and advice of a licensed Ohio attorney. 

Negotiate with the Objecting Heir(s) First

It is generally a good idea to exhaust all reasonable negotiation options with the objecting heir(s) before pursuing a partition action in court. 

Filing a partition action involves hiring a real estate lawyer and having that lawyer prepare the case and present it to a judge in court.  This process will be expensive, especially if the heir who is objecting to the sale hires their own lawyer to fight against the partition. 

To keep the numbers and facts simple, let’s say you will win your partition action, but it will cost you $20,000.00 to take the case to completion.   At the same time, let’s say that in a negotiated agreement, the objecting heir would be willing to sell the property if they get $10,000.00 more than you do from the proceeds of the sale.  In this scenario, the smart move is of course to take the $10,000.00 hit and sell the property, rather than give $20,000.00 to a lawyer. 

The facts will likely be more complicated, but this example is given to point out that a negotiated resolution can sometimes lead to a better financial result than a partition action, and can remove uncertainty.  Negotiating first is definitely worth a try before you file a lawsuit. 

What Will Happen in a Partition Action to Force a Sale of the Ohio Property?

The partition action is fairly straightforward and looks something like this:

(1) A co-owner of the property files a petition for partition with the court;

(2) The court and a court-appointed “neutral” person (called a “commissioner”) will determine whether the property can be physically divided amongst the co-owners (e.g. a plot of vacant land) or if physical division is unreasonable (e.g. a house) and the property should instead be sold;

(3)  If the commissioner determines that the property should be sold, they will establish a fair price for the property and present this information to the court;and

(4) If no co-owner is willing to buy out the other co-owner(s) at the established price, the court can order the property to be sold at auction. 

Chapter 5307 of the Ohio Revised Code establishes this right to file a partition action and force a sale. 

DISCLAIMER:  We are not licensed Ohio attorneys, and you should double-check all the above information with a licensed Ohio attorney.  This is not intended to be legal advice. 

If You Do Have Authority to Sell the Ohio Home, What Should You Do? 

If you have confirmed that you have the authority to sell the property and your goal is to sell it soon, your next steps could be interviewing real estate agents, looking for a cash buyer, or even potentially working with a wholesaler.  

If you are considering working with a cash buyer, there are several things you need to watch out for to make sure you are dealing with someone who is honest and will actually have the cash to buy your property.  I go over some of the most important questions to ask cash buyers in the article linked to above and here. 

If You Do Not Have Authority to Sell, What Should You Do?

As discussed above, there are multiple ways in which the decedent may have organized their real estate ahead of their passing. They could have died with their real estate held by a trust and also had a will with specific instructions. They could have had neither a trust nor a will and thus have their Ohio real estate subject to probate court proceedings. Alternatively, they could have used a transfer on death designation affidavit or joint and survivorship deed to specify who will inherit their property.

If you want to sell inherited property in each of those scenarios, but it is not abundantly clear that you are directly being given authority to sell it or that you are designated to inherit it, what can you do? The following sections will shed a little more light on this issue.

If the Ohio Property is in Probate and You Do Not Have Authority to Sell, What Should You Do?

If the Ohio property is going through the probate process, but you are not the appointed executor in the will or the court-appointed administrator, that does not mean you will not eventually have the authority to sell the property.

You may eventually have the authority to sell because the administrator or the executor is not always the person who will inherit title to the home when the probate process is completed. 

The administrator or the executor may have been a trusted friend, family member or advisor to the decedent, and can also be a court employee, but not the person who the decedent wanted to receive their property or the person who the law says must receive it. 

If the decedent had a will, for example, it might state that one person will be the executor to carry out the decedent’s wishes, but that the executor is directed to transfer the property to you.  You would want to read the will to determine if this is the case.  

A copy of the will becomes public record accessible through the probate court website once probate is commenced, but you can also reach out to the executor/administrator to ask them if you are designated as an heir to the property.

If there is no will, then the probate court-appointed administrator will be directed by the court to follow Ohio’s inheritance laws.  These laws specify the order in which relatives of the decedent have priority to inherit the decedent’s assets. 

Depending on your relation to the decedent, this could mean that you are in line to receive the property and simply must wait until the administrator transfers title to you. 

If the Property is in a Trust and You Do Not Have Authority to Sell, What Can You Do?

If the property is in a trust and you will not receive the authority to sell it, this means you were either (a) not appointed to be the successor-trustee and/or (b) are not a beneficiary/heir to the property. 

Remember that even if you are not the successor-trustee charged with carrying out the trust’s instructions and transferring title to the property out of the trust, this does not mean that you are not an heir to the property.  You should first ask the successor-trustee if you are a beneficiary under the trust and if you are, you can find out whether you will be inheriting an interest in the property.   

Similarly, even if you are not the successor-trustee, you may be the beneficiary to the property and ultimately receive ownership of it. 

However, if you are neither successor-trustee nor beneficiary, the path to obtaining ownership of the property is much less clear. 

In less common instances, for example, someone who is not a beneficiary to a trust’s assets has successfully challenged the trust in court by claiming that the creator of the trust was unduly influenced/manipulated by other people.  This type of situation often requires lots of legal fees and time to prove and is not always successful.    

If There is a Transfer on Death Designation Affidavit or a Joint and Survivorship Deed and You Do Not Have Authority to Sell, What Should You Do?

In the scenarios where there is a Joint and Survivorship Deed or a Transfer on Death Designation Affidavit, if you have not been named in the actual document as a joint title holder or beneficiary, respectively, then there is no direct path for you to establish authority to sell the property. 

Selling Inherited Real Estate in Ohio

As you can see, there are a multitude of paths toward (i) having the authority to sell inherited property and (ii) actually inheriting property, which are not always the same thing. 

If your goal is to sell Ohio property that you have inherited and/or to confirm that you have (or will have) the authority to sell inherited property, it is important for you to understand whether the property is in (or will be in) probate, or is subject to a trust, transfer on death designation affidavit or joint and survivorship deed.