Probate Land Sale

(RC Chapter 2127 and Loc.R. 65.1 to 65.3))

A probate land sale proceeding may be filed by a guardian of the estate, conservator, administrator, executor, or trustee if the statutory purposes for the sale are satisfied.  The allowable purposes vary for estates and guardianships.  Often in an estate a land sale is filed when the fiduciary does not have the power to sell real estate through a governing instrument (will, trust or executed consents to sell) and it is necessary to sell the real estate to pay debts. LIkewise, a guardian of the estate, who may not be able to use the guardinship sale by consent procedures set forth in RC 2127.012 may find it necessary to file a land sale proceeding.  It is the method whereby the fiduciary obtains authority to sell the real estate from the Court.  A land sale proceeding will be opened by the Court as a companion case to the general probate case.  If a minor or incompetent is involved in the proceeding as the ward or beneficiary, the Court may appoint a guardian ad litem (GAL) to represent the minor’s interests if there is a conflict of interest, or the minor’s interests are not otherwise represented.

It is not uncommon for a fiduciary already possessing a power of sale either through the language of a governing instrument (will or trust) or through the possession of executed consents to sell to also file a probate land sale proceeding to assure that the probate court proceeding has lis pendens priority over attempts by interested parties, mortgage holders or other lien holders to invoke the jurisdiction of the general division of the Common Pleas Court.

The guardian/conservator of a ward or the fiduciary of a decedent may obtain authority from the Probate Court to sell the whole or entire interest in a particular real estate, even though the ward or decedent only owns a fractional interest in the parcel.  The fees of the fiduciary associated with the sale are only charged against the portion of the proceeds of the sale attributable to the interest of the decedent or the ward.

A summons is issued and served as in other civil actions. Competent persons with an interest may waive summons, consent or voluntarily appear.  Incompetents must be served and their guardians may not waive service.

Sales are free of the expectancy of dower.  The person having the dower interest must be paid an allowance for the dower interest from the sale proceeds unless the answer of the person holding the dower interest waives the allowance.

The real estate interests being sold may also include coal, iron ore, limestone, fireclay, or other minerals on or under the real estate and the right to mine them.

A real estate interest may only be sold subject to an existing mortgage with the consent of the mortgage holder.  If consent is given the estate of the decedent or the ward is released from any subsequent deficiency.

If the value of the decedent’s or ward’s interest in the real estate to be sold is less than $3,000, the Court has discretion to waive many of the procedural requirements through a summary land sale proceeding (RC 2127.11).

A default judgment cannot be entered against a party without the filing of the Military Service Affidavit (see Local Rules/Local Forms tab on this website).  This link may be helpful in verifying military service status.

Items Necessary to File a Land Sale Complaint:

  1. Prepare a Complaint in accordance with the statutes and include requests to sell the entire interest, employ brokers, surveyors, and conduct a public or private sale as may be applicable; name as necessary parties all those identified in RC 2127.12 and .13, as may be applicable;
  2. File written request for service and sufficient copies of the complaint for each party requiring service;
  3. Evidence of title must be prepared and filed in accordance with local rules;
  4. The legal description of the real estate to be sold must be approved for transfer purposes by the County map department, if the real estate is located within Delaware County; and
  5. The base court cost deposit is one hundred sixty dollars ($160.00)only.

Items Necessary to Complete the Land Sale:

  1. When the matter is at issue and responsive pleadings have been filed or are in default, either move for a hearing or present the Court with an Agreed Entry Finding Sale Necessary, Ordering or Dispensing with Appraisal or request a hearing.  Include the legal description in the Entry or by way of attachment.
  2. An Entry Finding Sale necessary will NOT be approved until the Inventory has been filed in the companion case.
  3. If a default judgmentis being entered against a party, file the Military Service Affidavit (see Local Rules/Local Forms tab on this website).  This link may be helpful in verifying military service status.
  4. Return the Order to Appraise and an Entry Approving Appraisal (if not dispensed with), an Entry Ordering or Waiving Additional Bond, and an Entry Approving the Additional Bond, if required.
  5. Prepare an Order of Sale ( Public or Private).
  6. Market the property and Return the Order for Private (Public) Sale to the Court once the sale price and exact name of the buyer have been established;  if  sale unsuccessful, report that on the Return of Order of Sale and follow statutory alternatives;  Note:  the Return  Order of Sale for a private sale must recite that the sale was made after diligent endeavor to obtain the best price for the property and the private sale was at the highest price for the property (RC 2109.45).
  7. Tender Entry Confirming Sale, Ordering Deed and Distribution (the Entry must include gross proceeds, terms of the sale, and the intended closing deductions and disbursements);  the proposed distributions must reflect the statutory priorities (RC 2127.38) and the relative priorities of competing lien holders if the proceeds are inadequate to pay all of them; file updated evidence of title.
  8. Execute the Fiduciary deed at closing and receive the net proceeds.
  9. File a Report of Distribution with a copy of the signed closing statement.

Civil Commitment


The person who is filing the Petition, must set forth facts showing that someone is suffering from alcohol and other drug abuse and presents an imminent danger or imminent threat of danger to self, family, or others if not treated for substance abuse. 

  • The certificate of physician must be filled out completely by a physician who has examined the person who is suffering from alcohol and other drug abuse within two (2) days prior to the day the petition is filed with the Court.
  • The statement of treatment provider must be completed by the facility that is going to be providing the treatment.
  • The person filing the paperwork is responsible for all fees; court costs; evaluation assessment costs; sheriff fees (if any apply); hearing fees; treatment costs as stated in the Ohio Revised Code.
  • The person filing the paperwork must place a security deposit for 50% of the total amount of the cost of treatment with the court at the time of filing of the petition and petitioner must sign a guarantee for the rest of the payment of treatment.  
  • All of the money required for the court costs deposit, the treatment deposit and the cost of the examination must be paid when the petition is filed.
  • None of the court cost deposit will be refunded once the case is filed.


Contact a mental health services provider or the Court directly.  Review the Affidavit of Mental Illness to familiarize yourself with the criteria that must exist before the court may make an order.  Provide the supporting medical and anecdotal information establishing the applicable criteria. See the Frequently Asked Questions below for further information and for a list of several mental health services providers operating within Delaware County.  The court cost deposit for filing the case is $25.00.

Frequently Asked Questions


The Probate Court is given exclusive jurisdiction to involuntarily order the civil commitment of mentally ill individuals subject to court order who are residents of Delaware County (Chapter 5122), and the treatment of developmentally disabled individuals residing in Delaware County.  The Probate Court also has exclusive jurisdiction to order involuntary treatment for an individual residing in Delaware County who abuses alcohol or other drugs and can reasonably benefit from treatment (RC 3793.31, et. seq.).  Each of these actions is involuntary.  Family members considering filing an Affidavit of Mental Illness should have counsel assist them with the preparation of the filings as it is a third-degree felony in Ohio to knowingly file a false affidavit.

Criteria for Involuntary Hospitalization of a Person with Mental Illness:

“Mental illness” means the individual has a substantial disorder of thought, mood, perception, orientation or memory that grossly impairs judgment, behavior, capacity to recognize reality, or the ability to meet the ordinary demands of life.  A mentally ill individual is subject to court order and hospitalization if it is found by the court after hearing and through the presentation of clear and convincing evidence that because of the mental illness the individual is then (a) a substantial risk of danger to themselves, as shown by threats, or attempts, to commit suicide or to inflict serious harm to themselves, (b) a substantial risk of danger to others as shown by attempts, or threats, to harm others, (c) unable to provide for, and is not providing for, their own basic needs and those needs cannot be met in the community.

Criteria for Involuntary Court-ordered Outpatient Treatment for a Mentally Ill Person

In general, a mentally ill individual is subject to court-ordered assisted outpatient mental health treatment if all of the following are proven by clear and convincing evidence of behavior indicating the mentally ill person (a) based on a clinical determination is unlikely to survive safely in the community without supervision; (b) has a history of a lack of compliance with treatment for mental illness, and (i) has been hospitalized for mental illness at least twice within the prior 36 months with a lack of compliance being a significant contributing factor or (ii) a lack of compliance resulted in one or more serious violent acts, threats or attempts to self or others within the prior 48 months; (c) is unlikely to voluntarily participate in needed treatment; (d) has a history and current behavior and needs treatment to prevent a relapse that that presents a substantial risk of serious harm to self or others.   Supporting documentation and medical information should accompany the initial filings.  The availability of appropriate treatment in an outpatient setting is a pre-condition for outpatient treatment being ordered by the probate court. 

What do I do if I Believe a Person is Mentally Ill and Subject to Court Order?

Emergency psychiatric assessments and pre-screenings for individuals believed to be mentally ill and subject to court order are conducted by Grady Memorial Hospital Emergency Room staff for individuals transported to, and/or presenting at, the Grady Memorial Hospital Emergency Room, Delaware, Ohio.   

Based on the information provided and the assessment, the examiner may arrange for the transport of the individual to a psychiatric hospital for up to 72 hours while a civil commitment action is commenced in the probate court.

If the situation is not an emergency, or within 3 days of the emergency hospitalization, an Affidavit of Mental Illness may be filed with the probate court by the family member, or assessor, alleging the existence of the mental illness and setting forth the specific actions, conditions and behavior which supports the criteria necessary for a court order.  Filings in mental health commitment proceedings in the probate court are not public records and the hearings are not open to the public.

Is there a hearing?

A hearing on an affidavit alleging mental illness is held at which an independent psychiatrist or psychologist who has examined the individual testifies regarding the mental illness and the existence, if any, of criteria for hospitalization.  The individual is served with notice of the date time and place of the hearing, is permitted to attend, permitted to have counsel present, entitled to notice of the times, date and place of the hearing (as are the individual's next of kin), and is entitled to have a court appointed attorney, if indigent.  Consideration is given to the least restrictive available alternative to hospitalization.  If the individual applies for voluntary hospitalization prior to the conclusion of the hearing, the court may dismiss the involuntary proceedings and expunge the record.  If the emergency hospitalization has been to a psychiatric facility in another county, our court will generally transfer the file to the probate court in that county to conduct the full hearing.

What Does the Court Order When Hospitalization for Mental Illness is Appropriate?

After the hearing, the probate court may dismiss the case and order the individual discharged or may order hospitalization for a period not to exceed 90 days, and that time period can be extended upon application of the hospital and a further hearing.  Delaware County does not have an in-patient mental health treatment facility for involuntarily hospitalized individuals.  Involuntary hospitalization will generally be to a facility in Franklin County or to one of the state facilities operated by the Ohio Department of Mental Health.  In most situations, the treating psychiatric hospital treats the individual and when they are determined to no longer meets the criteria for hospitalization, they are released with a plan for follow-up treatment through the community mental health provider agencies or their personal physicians.

What Does the Court Order When Assisted Outpatient Treatment is Appropriate and Available?

If assisted outpatient treatment is appropriate and available for the person's mental illness and the person meets all of the mandated criteria, the probate court may order that the individual comply with the recommended mental health treatment.  If the person fails to comply with the treatment plan the court may hold a hearing and issue additional orders or dismiss the case.  The court cannot consider jailing the person for not abiding the Order.  If the person then demonsatrate's the criteria permitting court ordered hospitalization, upon proper hearing the court may commit the person to a more restrictive in-pateint setting.

Community Agencies that are Available to Provide Mental Health Services

The Delaware-Morrow Mental Health and Recovery Services Board (DMMHRSB), 40 N. Sandusky St., 3rd Flr, Delaware, OH is the governmental entity charged by law with the responsibility of creating and funding a community network of mental health providers (Phone 740-833-2160).

  • Syntero, is a contract provider of the DMMHRSB, with offices at 299 Cramer Creek Ct., Dublin, OH. (Intake Phone 614-889-5722, ext. 133).
  • Maryhaven, Inc is a contract provider of the DHMMRSB, with offices at 88 N. Sandusky St., Delaware, OH.  (Phone 740-203-3800).
  • Southeast Healthcare Services is a contract provider of the DHMMRSB, with offices at 824 Bowtown Rd., Delaware, OH. (Phone 740-695-7795).
  • Grady Memorial Hospital (ER Staff) conduct psychiatric assessment/hospital pre-screenings on a 24/7 basis for individuals transported to, and/or presenting at, the Emergency Department.
  • HelpLine is the 24 hour DMHHRSB crisis referral agency for Delaware County (Phone 740-369-3316).
  • Individual and agency psychiatric, psychological and social services providers also are available to provide educational and vocational assistance, housing support and social networking to mentally ill individuals.

The Role of the Court With Regard to Developmentally Disabled Individuals

The probate court is responsible for filings made when it is deemed necessary to place a developmentally disabled individual in an institutional setting, typically the Columbus Developmental Center operated by the state.

The Delaware County Board for Developmental Disabilities, 7791 Columbus Pike, Lewis Center, OH 43035 (Phone 740-201-3600) is the governmental entity for creating and funding the network of community providers for developmentally disabled individuals who are residents of Delaware County.

What is the Role of the Court in Ordering the Involuntary Treatment of Individual Who Are Suffering from the Abuse of Alcohol or other drugs?

Ohio law (RC 3793.32 et. seq.) permits a spouse, relative or guardian to file in the Probate Court a verified petition alleging that an individual residing in Delaware County who suffers from alcohol or drug abuse, is in imminent danger or imminent threat of danger to self, family or others as a result of the alcohol or other drug abuse, and can reasonably benefit from treatment.  The applicable court cost deposit must be paid.  The case caption is entitled “In the Interest of (name of respondent)”.  The contents of the petition are specified in the statutes and the filing of the petition requires a probable cause hearing where the Applicant is examined by the Court under oath, and permits the Probate Court to schedule a full hearing within 7 days.  Upon a finding based upon clear and convincing evidence that the individual may reasonably benefit from treatment, the Probate Court is permitted (but not required) to order the individual to undergo treatment.

The responsibility for payment for the treatment and examination expenses is upon the applicant, who must deposit with the Court upon the filing of the petition one-half of the estimated costs of the treatment of the respondent and sign a financial guarantee for the costs associated with the hearing, the examination of the respondent and the balance of the costs of any treatment ordered by the Court.  Treatment, if ordered, must be delivered by a licensed or certified facility from a list of the providers established by the mental health and recovery services board.

Where do I obtain Alcohol and Substance Treatment Services in Delaware County?

The governmental entity with responsibility for establishing a community network of providers is the Delaware Morrow Mental Health and Recovery Services Board (DMMHRSB).  It may be contacted for referral information at 40 N. Sandusky St., 3rd Flr., Delaware, OH (Phone 740-833-2160).

Alcohol and substance abuse treatment services are offered through many private providers.  Two principal contract providers of the DMMHRSB with Delaware delivery sites are:

  • Maryhaven, Inc.  (Phone 614-203-3800); and
  • Recovery & Prevention Resources of Delaware and Morrow Counties, (Phone 740-369-6811 & 800-641-3924).

Do I need an Attorney to file a Petition for Forced Alcohol Treatment?

The receipt of good legal advice can be critically important to a person intending to file a petition for the involuntary treatment of an individual suffering from alcohol or other drug abuse since upon filing there are substantial financial deposits for treatment that must be paid and further financial guarantees that must be signed.  The petitioner is not required to have an attorney.