The person with priority to serve as the fiduciary in an Ohio probate is set forth under Ohio law and depends on whether or not the estate is testate or intestate.
Priority of Appointment In an Ohio Intestate Probate
In an intestate Ohio probate, the priority of appointment for a fiduciary is:
- Surviving spouse who resides in Ohio.
- Next of kin who resides in Ohio.
- Other suitable person who resides in Ohio.
Priority to serve as the fiduciary in an intestate Ohio probate can be waived.
Priority to serve can also be lost by neglect in filing to serve as the fiduciary. Ohio Revised Code §2113.06 states that “if without sufficient cause [the person entitled to administration] neglect[s] to apply within a reasonable time for the administration of the estate, their right to priority shall be lost…”
If the right to priority to serve as a fiduciary is lost, then the court is permitted to appoint a suitable person who is a resident of Ohio, or the attorney general or attorney general’s designee, if the department of Medicaid is seeking to recover the costs of Medicaid services from the deceased.
Priority of Appointment In an Ohio Testate Probate
In a testate Ohio probate, the priority of appointment for a fiduciary is:
- Person nominated in the will.
- If no nominated executor is able or willing to serve, a legatee or devisee named in the will who would have been entitled to administer the estate if the decedent had died intestate.
- Some other suitable person.
The law governing the priority of appointment for the fiduciary of an Ohio testate estate is found in Ohio Revised Code §2113.05
Ohio Residency Requirements To Serve As An Estate Fiduciary
In an intestate estate, the fiduciary is required to be a resident of Ohio. This rule can be found in Ohio Revised Code §2109.21(A).
In a testate estate, the fiduciary can be a nonresident if:
- Related to the decedent by affinity or consanguinity; or
- A person who resides in a state that authorizes the appointment of a nonresident.
If neither of the above apply, then the fiduciary of an Ohio testate estate is required to be a resident. This rule can be found in Ohio Revised Code §2109.21(B)(1).
To qualify as a fiduciary in an Ohio probate estate the applicant must meet the residence, priority, and bonding requirements.