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Ancillary Probate In Ohio

By:  Daniel McGowan, Esq.

Ancillary probate in Ohio becomes necessary when a resident of another state dies leaving real property in Ohio.  While the domiciliary probate will be opened in the state where the decedent was a resident, an ancillary probate in Ohio is opened to handle the real property in Ohio.

Section 2129.04 of the Ohio Revised Code states:

When a nonresident decedent leaves property in Ohio, ancillary administration proceedings may be had upon application of any interested person in any county in Ohio in which is located property of the decedent, or in which a debtor of such decedent resides. Such applicant may or may not be a creditor of the estate. The ancillary administration first granted shall extend to all the estate of the deceased within the state, and shall exclude the jurisdiction of any other court.

Who Can Apply For Ancillary Probate In Ohio?

Ohio law allows any interested person to apply for ancillary probate in Ohio.  An interested person is generally someone who stands to benefit from the ancillary probate.  Typically, this would be a beneficiary or heir.  However, the statute also allows for a creditor of the decedent to apply for ancillary probate.

Where Is Ancillary Probate Opened In Ohio?

Ancillary probate is usually opened in the county where the decedent owned real property.  Since ancillary probates almost always involve real property, selecting the county in which to open the ancillary probate is generally very straightforward.

How Do You Apply For Ancillary Probate In Ohio?

Generally, the ancillary probate starts by filing authenticated documents from the domiciliary probate in the Ohio probate court.  If there is no domiciliary estate, then you just proceed in Ohio as you would with any probate matter. See Ohio Revised Code 2129.11 (“If no domiciliary administration has been commenced, the ancillary administrator shall proceed with the administration in this state as though the decedent had been a resident of this state at the time of the decedent’s death.”)

After an authenticated copy of the will is admitted, and after the domiciliary letters of appointment and any other records of the court of the domiciliary administration required by the Ohio probate court have been filed, the court will appoint the ancillary administrator.

If the nonresident decedent died intestate, or did not designate someone in their will to act as ancillary administrator, the “court shall appoint in that capacity a suitable person who is a resident of the county including, but not limited to, a creditor of the estate.”  Ohio Revised Code 2129.08.

Can An Ohio Ancillary Administrator Automatically Sell Real Property?

No.  The ancillary administrator must have the proper authority to sell the real property.  Section 2129.13 of the Ohio Revised Code states:

If an ancillary administrator finds that the personal property of the nonresident decedent in this state is not sufficient to pay the expenses of administration, public rates and taxes, and other valid claims that have been presented, the ancillary administrator shall proceed to sell as much of the real property of the decedent located in this state that is necessary to pay those debts. The procedure shall be the same as in sales of real property in administration proceedings relating to the estates of resident decedents under sections 2127.01 to 2127.43 of the Revised Code.

In addition, the Ohio Revised Code expressly provides that real property shall not be sold in an ancillary administrator if the domiciliary administrator or executor, or any other interested person, can pay all of the expenses of administration.  Section 2129.16 states:

An ancillary administrator shall not sell property of a nonresident decedent if the domiciliary administrator or executor, or any other person having an interest in the estate, within thirty days after the forwarding of the certificate of assets and liabilities required by section 2129.15 of the Revised Code pays to the ancillary administrator a sum sufficient to pay all expenses of administration, public rates and charges, and creditors’ claims filed in the state, or secures the payment of such sum to the satisfaction of the probate court. The domiciliary administrator or executor, or any other person having an interest in the estate, may likewise prevent the sale of any part of such property by paying, or securing to the satisfaction of the court the payment of, the appraised value of the property withheld from sale.

How Is An Ohio Ancillary Estate Distributed?

After all expenses have been paid and heirs determined, and the ancillary administer is ready to distribute the Ohio ancillary estate, distribution can be made in two ways.

First, the ancillary administrator, after approval of the Ohio probate court, can distribute the remaining assets to the domiciliary administrator or executor.

Second, if the Ohio probate court so orders, the residue of the ancillary estate can be delivered to the persons entitled to it.  See Ohio Revised Code 2129.23.

An Ohio probate lawyer can help you navigate ancillary probate, whether you live in Ohio or in another state.

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