Full Administration With A Will Or Without A Will

When a person dies and leaves assets in their name, certain steps must be taken to transfer those assets to their heirs or beneficiaries of that person’s estate.  There are two types of assets:  probate assets and non-probate assets.  Probate assets are those that must be transferred through the Probate Court and include, but are not limited to, bank accounts, real estate, automobiles, and personal items that are titled solely in the name of the decedent.  Non-probate assets are those that automatically transfer upon death, such as jointly held bank accounts with rights of survivorship, life insurance policies with a designated beneficiary, real estate that is jointly held through a survivorship deed or under a transfer upon death designation affidavit.

Probate assets transfer to beneficiaries with the supervision of the Probate Court in either of two ways:  through the directives contained in a property executed will, or if there is no will through the application of the Ohio statutes of descent and distribution.  

There is no statutory limit on the value of probate assets that can be transferred through a full administration.  It is the only option for larger estates and it is often the method choice for even smaller estates.  Consultation with an attorney experienced in probate court procedures is recommended when contemplating a full estate administration.  

Items necessary and suggested to file a full administration:

  1. Decedent must have been domiciled in Delaware County at death;
  2. Certified copy of the decedent’s Death Certificate (the Deputy Clerk will make a copy and return the certified copy to you);
  3. Copy of Driver’s License or Government issued picture ID of the applicant (if filed without an attorney);
  4. If probating a Will, prior to filing the Will consider obtaining all of the necessary Waivers of Notice from those persons and entities listed on both sides of the Form 1.0, and complete the Certificate of Service;
  5. If there is a surviving spouse and a Will, consider obtaining prior to filing the Spousal Election (either Form 8.1 or 8.2, as applicable) and Waiver of Service of Citation to Surviving Spouse ( Form 8.6);
  6. The base court cost deposit is two hundred dollars ($200.00); and
  7. Complete the applicable Probate Forms listed to the right.

Note:  The Estate Tax filings are not required for estates of decedents dying on or after January 1, 2013.


Frequently Asked Questions                    

Estate Administration

The process of ensuring that the decedent’s probate assets are collected, protected and distributed among the rightful heirs, beneficiaries and creditors according to the decedent’s will or applicable law is known as the administration of an estate and is handled through the Probate Court of the decedent’s domicile (while this also may be the county of residence, it is the fact of domicile, not the residency, that is determinative) or if the decedent was a non-resident of Ohio, then in a county where property of the decedent is located. 

It provides for an orderly conclusion and wrap-up to the decedent’s financial affairs thereby facilitating the ability of the heirs and survivors to continue life with the minimum of disruption.

To the extent that the decedent held non-probate assets that transfer at death by reason of the manner in which they were titled (joint and survivorship, payable on death, designation of beneficiary) the Probate Court will not be directly involved, except to the extent that they must be reported on an Ohio estate tax return or if the beneficiary designation or transfer mechanism fails to be effective by reason of defective creation or the prior death of the named death beneficiary.

How Soon after Death Must the Estate Be Opened?
There is no statutory limit on opening an estate; however, most estates are opened within 30 days of death so that matters can be handled in a timely basis to assure that benefits are preserved, assets are not scattered, and matters can be addressed while the memories are fresh and documents can be located.  If the estate is not timely handled, creditors or other interested persons may apply to be appointed to administer the estate or apply for the appointment of a special administrator to preserve assets and receive filed claims.

If there is an intention to present an “oral will” special time limits make prompt commencement of an estate administration imperative. (See below for "Oral Will")

Must the Will be Presented to the Court?
If there are no probate assets to administer, there is no requirement that the will be presented to the Probate Court; however, Ohio law provides that no will is effective to pass personal or real property unless it has been presented and admitted to probate (RC 2107.61).  It provides that a person knowingly withholding a will from the Court without reasonable cause for a period of more than 1 year may be held to have forfeited the right to inherit under the will.  Oftentimes, even if there are no probate assets, the decedent’s will is filed with the Probate Court after death “for record only” to assure that it has been timely presented and will be available if later probate assets are discovered.

Can an Oral Will be Effective?
An oral statement made by a decedent during the last sickness, while of sound mind and memory, may be effective to pass personal property, but NOT to pass real estate.  To be effective for any purpose it must be reduced to writing within 10 days of having been spoken and witnessed by the two people who heard the utterance.  Thereafter, the writing must be presented to the Probate Court within 3 months after death. (RC 2107.60)

What is the First Determination?
The initial determination that should be made is whether the value of the assets, nature of the heirs, and extent of the debts permit the handling of the estate through one of the abbreviated procedures known as Release from Administration, Summary Administration, or  Short Form Release. There are FAQ’s for each of those procedures on this website within the "Estates" tab.

Who Administers the Estate?
If there is a will, and if it is admitted (accepted) for probate, the person named in the will as the Executor will generally be appointed.  If there is no will, the Court will appoint a suitable Administrator, giving priority to the surviving spouse, if any, and then to other relatives within a statutory scheme, recognizing that the person appointed must be suitable and qualified to handle the duties required.  Letters of Authority are issued to the appointee (also referred to as the fiduciary).  Prior to the appointment being made, the fiduciary must sign a written acceptance of the duties, and there may be a requirement that the fiduciary posts a financial surety bond to protect the heirs and creditors against a loss if the fiduciary would fail to properly complete the task or mishandle the assets.  The Court may remove a fiduciary who fails to administer the estate with reasonable diligence or who violates the duties imposed by law.

What are the Fiduciary’s Duties?
While the duties will vary greatly depending on the asset mix, the family relationship and whether the decedent’s estate is solvent (more assets than valid debts), the fiduciary in every estate must do the following:

  • Determine the names, ages and degree of kinship of the heirs to the decedent and to one another.
  • Take possession of and protect the assets of the decedent.
  • Appraise all property that does not have a readily ascertainable value.  The estate fiduciary may elect to use the County Auditor's market valuation as the inventory valuation for the real estate instead of obtaining a fair market value appraisal.  In that event, the inventory listing should be annotated as "auditor's valuation" and a copy of the County Auditor's property record card indentifying the parcel and the owner(s) should be included.  A motion to dispense with appraisal is not required when using the County Auditor's valuation.
  • File a written Inventory and Appraisal of the decedent’s assets within 3 months of being appointed.
  • Receive and determine the validity of all claims submitted against the estate and reject any untimely or invalid claims.
  • File timely tax returns (income, estate, sales, etc.) and pay the taxes due in order of their statutory priority and to the extent that there are estate assets from which to pay them.
  • Pay valid claims in the order of priority set by law and to the extent there are assets available.
  • Liquidate (only if necessary, or directed) and distribute assets to the proper heirs and in the proper amounts pursuant to the will, or if there is no will, then pursuant to Ohio law, but only after all clams, debts and cost of administration have been paid or are secured to be paid.
  • File accountings with the Court reflecting all of the receipts and distributions.

How Long Does it Take to Administer an Estate?
The majority of estates are administered within 9 months of appointment of the fiduciary; however, issues surrounding taxes, creditors’ claims, the ambiguity of documents, family conflicts, or other civil litigation may extend the estate administration. Court approval must be obtained to extend the administration beyond 6 months from the appointment of the fiduciary.  The fiduciary may determine that partial distributions can be safely made to heirs before the estate is formally closed.  It is important to commence the estate soon after death since the estate can never be concluded until it has been opened.

What if there is no Will?
For persons who die without a will (intestate), the Ohio legislature has established by law who will succeed to the property of the decedent.  It gives varying degrees of priority to the surviving spouse, depending on whether there are children of the decedent and whether the surviving spouse is the parent of at least one of the children.  It there is no spouse or children of the decedent, then other relatives are classified by degree of kinship and prioritized.  The Statute of Descent and Distribution must be read carefully before distributions are made.  Only rarely does the decedent’s estate pass to the State of Ohio by escheat.

What if the Will is Ambiguous?
If the fiduciary fails to bring an action after 30 days, another interested party may request the Court to provide directions, interpretation, or construction of a provision of the decedent’s will by commencing a civil action in the Probate Court (See “Civil Proceedings” tab on this web site).  All interested parties will be served with notice of the action and the Court will hold a hearing to determine the intent of the decedent.

What if the Will is Believed to be Invalid?
If the will appears to be prima facie valid (proper age, number of witnesses, signature, etc.) it will be admitted to probate by the Court and written notice of its admission will be given by the applicant or the fiduciary to all next of kin and persons who would inherit if there was not a will.  Admission of the will does not barr a later contest as to its validity.

An interested party may contest the validity of the will by commencing a civil action in the probate court in the county in which the will was admitted to probate (See "Civil Proceedings" tab on this website).  The legal presumptions are in favor of the will and the mental capacity of the testator and against undue influence having been exerted over the maker.  The person contesting the will has the burden of proof and the contesting party must establish by a preponderance of the evidence that the testator lacked the mental capacity to make a will, was subject to undue influence in the preparation or execution of the will, that the document was improperly executed, or that the will is a forgery.

Any party to the will contest has the right to request a jury trial of the matter and three-fourths of their number must concur in the verdict.  In general, a will contest must be commenced within 3 months after the filing of the Certificate of Service Waiving Notice (p. 2, Form 2.0) or Certificate of Service of Notice (Form 2.4) of probate of will.  Persons considering contesting a will should promptly consult legal counsel, as the time for contesting a will is quite short.

What is the Estate Tax?
Currently there is a Federal Estate Tax.  It is beyond the scope of this discussion to provide details of the current federal estate tax.  It is the fiduciary’s duty to determine if a particular estate is required to file a federal estate tax return (Form 706) and if so, the return is due within 9 months of the date of death, unless extended.

For persons dying on or after January 1, 2013, under current Ohio law there is no Ohio estate tax.   

For persons dying prior to January 1, 2013, if the value of the gross estate exceeds $338,333 a tax return must be filed and an estate tax may be due.  It is the fiduciary’s duty to determine if the particular estate is required to file an Ohio estate tax return and if so, the return is due within 9 months after the date of death, but is automatically extended to 15 months after death, although interest accrues on any tax not paid within 9 months of death.

An Estate Tax Form 22 must be filed with the Court in every estate when the decedent died on or before December 31, 2012.

Is an Attorney Required for a Fiduciary to Administer an Estate?
Due to the complexity of the law and the legal process that is involved with administering an estate the Probate Court strongly recommends that every fiduciary seek legal counsel.  Legal fees for services to the fiduciary, when approved by the Court, are properly payable from estate assets.  The fiduciary is making decisions that have a direct bearing on the legal rights and benefits of every creditor and heir.  Not only may a fiduciary be personally liable for making incorrect decisions, prejudicing those interests and rights, but the Court may impose sanction and damages.  Under Ohio law "pro se litigants are bound by the same rules and procedures as those litigants who retain counsel. They are not to be accorded greater rights and must accept the results of their own mistakes and errors." Meyer v. First Nat. Bank of Cincinnati, 3 Ohio App.3d 209, (1st Dist, 1981).
Court employees are prohibited by statute from practicing law, cannot complete forms and CANNOT give legal advice.

Estate Tax Returns Only

Note: Under current Ohio law, no Ohio estate tax filings are required for the estates of decedents dying on or after January 1, 2013.  The following information is applicable for estates of decedents dying on or before December 31, 2012. 

Items necessary to file an Ohio Estate Tax Return Only when no other probate filings are made:

  1. The base court cost deposit is fifty-eight dollars ($58.00).
  2. If there is non-probate real estate of the decedent, care should be taken to attach a legal description of all the decedent’s non-probate real estate to the Estate Tax Form 22, Part I.  This informatiion is essential to real estate title examiners.
  3. If the estate tax return is required and tax is due the following forms must be filed with the Probate Court:
    1. Original Ohio Estate Tax Form 2 (in duplicate, one will be returned for delivery by the filer to the County Auditor’s Office); Caution: the bottom portion of page 1 of the return must be completed by the filer allocating the subdivision's share of the taxes being paid or the estate tax return is incomplete and the Court will not accept it for filing;
    2. Original Ohio Estate Tax Form 5 (in duplicate, one will be returned for delivery by the filer to the County Auditor's Office);
    3. Original Form 22 (Part I and II, as Part II must also be delivered by the filer with the copy of the tax return to the County Auditor’s Office for a secondary filing and stamping- the County Auditor returns the fully processed Part II directly to the Court); and
    4. A copy of all the attachments that will be filed with Auditor’s Office.  Once this is filed, the Auditor’s Office will provide a ‘pay-in” form and directions for then paying the taxes with the County Treasurer’s Office.
  4. If the estate tax return is required and there is no tax due the following forms must be filed with the Probate Court:    
    1. Original Ohio Estate Tax Form 2 (in duplicate, one will be returned for delivery by the filer to the County Auditor’s Office);
    2. Original Form 22 (Part I only; Part II is not required by the Probate Court or the County Auditor if no taxes are being paid); and
    3. A copy of all the ET-2 attachments that will be filed with Auditor’s Office. 
  5. If no estate tax return is required and the filer desires to make a filing, (primarily occurring when there is non-probate real estate of the decedent):
    1. Original Form 22 (Part I only with the legal description of the non-probate real estate attached; Part II is not required by the Probate Court or the County Auditor if no taxes are being paid).
  6. The staff of the Probate Court will neither deliver the tax filings to the County Auditor nor deliver the tax payments to the County Treasurer.  
  7. Estate tax filings (other than the filing of Form 22, Part I only when there is no return required to be filed and no tax is due) SHOULD NOT BE MADE BY MAIL.
  8. The case number will be required on the upper portion of every page of the estate tax return, including attachments.

Wrongful Death Settlements

Wrongful death refers to causes of action which allege that the victim died as a result of the negligent conduct or misdeeds of another. These claims commonly arise as a result of auto accidents, personal injury accidents, professional malpractice, workplace accidents, mesothelioma, dangerous or defective products, or other negligent or the intentional actions of others.

While this type of claim is not tried in the Probate Court, the approval of the settlement and then the allocation and distribution of the proceeds of the claim or litigation is within this Court's jurisdiction for a decedent who died a resident of Delaware County.  The application to settle a claim for wrongful death and the apportionment of the proceeds are two distinct matters for which the Court may require separate hearings.  Interested parties to be notified are those set forth in R.C. 2125.02 and including those persons identified in the case of In Re Estate of Payne, 2005-Ohio-2391 (10th Dist.).  See Loc.R. 70.1

Signed Waivers and Consents to the proposed distribution must be filed from all interested parties, or a hearing and service of notice upon those not waiving will be required.

Attorney fees for the completion of the probate proceeding required in connection with the approval of the settlement of a wrongful death claim shall be paid from the allowed contingent attorney fee unless there is no attorney involved in the representation of the injured parties.  In that event the probate attorney fees incurred in connection with filing the settlement proceeding shall be proportionately paid by the persons receiving benefits unless otherwise mutually agreed by all of the beneficiaries or otherwise directed by the Court.

Items necessary to file an Application to Approve a Wrongful Death Settlement:

  1. Decedent must have been a Delaware County resident;
  2. All the necessary forms that are filed in an Estate case;
  3. Certified copy of the Decedent’s death certificate (to be copied by Court and original returned);
  4. Original will of the decedent (if the decedent had a will and if not previously filed);
  5. Statement in Support of Proffered Settlement (when available);
  6. The base court cost deposit is two hundred dollars ($200.00); and
  7. Complete the Probate Forms listed to the right.

A thorough review should be made of Loc.R 68.4 if the settlement contemplates the use of a structured settlement contract.

-Frequently Asked Questions


How Long do I Have to Present a Claim Against a Decedent’s Estate?
The answer depends on the type of claim and the “pot” of assets from which the creditor or injured party is seeking funds for payment.  The categories of claims are:

  • An unsecured claim (e.g. a claim for money owed on an account, a note, because of an injury, for reimbursement of the funeral expenses) if payment is being requested from general estate assets must be presented for payment within 6 months of the date of the decedent’s death.  The 6 month timeline begins with death, not when the estate is opened or when an executor or administrator is appointed.
  • Secured claims (mortgage on real estate, lien on vehicle, pledge of securities) do not need to be presented for payment, to the extent that payment is only being sought from the asset providing the security.  If there is a possibility that the asset providing the security will not fully satisfy the debt, then the claim for the deficiency must be presented within the 6 month window following the death.
  • Claims only against the decedent’s liability insurance for injuries caused by another (tort claims, i.e. injuries from auto accident, assault, intentional acts) in which recovery is being sought only from the insurance are not bound by the 6 month timeline; however, if recovery beyond the insurance coverage is sought from the decedent’s general estate assets, then the claims must be submitted within the 6 month window.
  • Medicaid Recovery Claims may be submitted for a period ending on the later of one year after the decedent’s death or 90 days after the filing of the Medicaid Recovery reporting form (Form 7.0) with the Medicaid Recovery Administrator. This special claims filing window makes the state Medicaid program a super-creditor.

How do I Timely Present a Claim?
An Executor or Administrator having a claim against the estate in which the appointment is made should disclose the existence of the claim on the initial application for appointment.  To preserve the claim, the executor/administrator must file a claim with the Court within 3 months of the appointment.  If the claim is for more than $500, the Court will set the claim for an evidentiary hearing not less than 4 weeks, nor more than 6 weeks, after the filing.  The Court may appoint a special master commissioner to investigate the validity of the claim, or may appoint an attorney to represent the estate at the hearing.  The fiduciary must notify all those persons or entities inheriting from the estate at least 20 days prior to the hearing by givibg them notice of the date, time, location and purpose of the hearing.  The interested parties may, in writing, waive the notice and may consent to the approval of the claim.

All other creditors must present their claims in one of the following ways after the opening of an estate and the appointment of the estate fiduciary (but before the filing of the final account):

  1. To the executor or administrator in writing;
  2. To the executor or administrator in writing, and to the probate court by filing with it a copy of the written claim that has been filed with the fiduciary, or
  3. By sending a written claim by ordinary mail addressed to the decedent if it is actually received by the fiduciary within 6 months of the date of death.

If the final account has already been filed and the claim is not time-barred, then a claim is made by presenting the claim in writing to the persons or entities who received distributions of estate assets from which the claim properly would have been paid if the assets had not been distributed.

Claims not timely presented are forever barred by Ohio law as to all parties, including the estate beneficiaries, unless the beneficiary is otherwise obligated on the debt (e.g., a co-debtor).

What do I Do if No One Applies to Open the Estate, or the Appointment of the Estate Fiduciary is Delayed?
If a creditor concludes that the size and probability of collection of the claim justifies the effort and expense, the creditor can apply to the Probate Court for the appointment of a special administrator for the estate who serves only until the general estate fiduciary is appointed.  If the application and appointment occur within the 6 month post-death window and the claim is timely filed with the special administrator before the claims barr date, the claim will be timely presented.  The creditor should apply to the court sufficiently far in advance of the 6 month deadline to allow the Court time for processing the application for a special administrator and allow the claimant adequate time thereafter for the claim to be presented.

Can the 6 Month Claim Filing Window be Shortened as to a Creditor?
The fiduciary may accelerate the closing of the claims filing window by giving a written notice to the claimant containing specific identifying information and advising the creditor that the claim must be presented within the earlier of 30 days after the notice is received, or 6 months after the death.

Is There a Fee to File a Claim?
There is no fee charged by a fiduciary for a claim presented to the fiduciary.  There is a nominal $10.00 charge by the Probate Court for filing and docketing a claim filed with the Court and included in the estate case file.  The court’s filing fee must be tendered with the filing or the proffered filing will be rejected.

Does the Timely Filing of a Claim Assure Payment?
The estate fiduciary may allow a particular claim, or reject it by giving written notice of the rejection to the claimant of all or part of the claim.  If rejected, the claimant has 2 months from the date the notice of rejection is received in which to commence suit on the claim by filing a lawsuit on the claim in a court having general jurisdiction to determine the validity of the claim.  The claims barr statute (RC 2117.12) recites that for purposes of this code section “Commencement” means the filing of both "the complaint and a praecipe for service of summons" on the estate fiduciary.  The lawsuit on the general validity of the claim is not within the jurisdiction of the probate court.

A claim that is otherwise valid, but not timely presented must be rejected by the estate fiduciary as current Ohio case law holds that there is no authority for the fiduciary to pay barred claims.  The fiduciary may be held personally responsible for improperly paying untimely claims.

Does Allowance of a Claim Assure Payment?
The payment of allowed claims depends on the estate being solvent, and also upon the relative priority given the claims of the type that the claim represents.  It is therefore important that the written claim clearly indicate whether the claimant is alleging that the claim is one of the claims having a statutory priority for payment ahead of general unsecured.  The type of priority claims listed in descending order of priority for payment are loosely described as:

Costs of administration, certain expenses of funeral and burial within certain dollar limits, the $40,000 family allowance for the spouse/minor children, debts given priority under federal laws (taxes), expenses of the decedent’s last illness, claims under the state Medicaid Recovery program, and state and local taxes, debts for manual labor and service performed for the decedent within 1 year prior to the death, not exceeding $300 per laborer.  Other claims are considered general claims and have the lowest priority of claims, but such claims are still ahead of distributions to the estate’s heirs.

These are only generally categories and claimants are cautioned to give consideration to the specific statutory language governing the order and priority of claims (RC 2117.25).

Do Heirs Inherit the Debts of a Decedent?
Debts of a decedent do not pass to the decedent’s heirs, except to the extent that the debts are secured by assets the heir inherits and the debt is not paid in the estate.  An heir may become responsible for the payment of debts of the decedent to the extent that a distribution has been made to the heir by the estate fiduciary and insufficient assets remain in the estate to fully pay the valid debts.  In that case, the heir is responsible for payment of the debt, but never for an amount greater than the amount of the distribution and never for a greater share of the claim than the ratio that the distribution received was to the total of the distributions to all beneficiaries of the same priority class.

If Someone Advances Money to Pay a Creditor of the Decedent, Does That Give Them a Claim Against the Estate of the Decedent?
Only to the extent of the payment and to the extent that the claim has been or will be timely presented to the estate and is not barred by a valid rejection.  The person paying the claim should consider obtaining a written assignment of the claim from the creditor receiving the payment and if the claim has not already been filed make a timely filing.

Can I Execute on Estate Assets on a Judgment that I Obtained After the Decedent’s Death or on a Lien Perfected Prior to the Death?
General executions (forcible collections, seizures, judgment liens) may not be issued against an executor or administrator without approval of the Probate Court, and then only against the undistributed assets held in the estate.  Pre-death secured creditors may enforce their liens against the estate asset providing the security without filing a claim or obtaining Court approval, unless the estate fiduciary has already commenced an action to sell the asset in the Probate Court.

Do I need an Attorney to Present a Claim?
The benefit of good legal advice can be critically important to a person intending to file a claim.  It is critical to assure timely presentation, proper documentation, and clear identification of the priority claimed.  It can enhance the prospects for payment.  A claimant is not required to have an attorney.  Ohio law prohibits the Court’s staff from providing legal advice to a claimant or preparing a creditor’s claim.