Creditor's Bill

As it relates to the Probate Court, this is an action by which a creditor holding a judgment seeks to subject an interest of a judgment debtor to the payment of the creditor's existing judgment.  The essential elements that must be shown are that the creditor has a valid judgment against the judgment debtor (typically the heir or a beneficiary), (2) a distribution is due or is to become due the judgment debtor, and (3) the judgment debtor does not have sufficient assets to satisfy the judgment.  RC 2333.01

Before a distribution is made, the only way for a creditor to reach an heir's or beneificary's interest is through a creditor's bill.  After the fiduciary has made the distribution, the distribution is in the hands of the heir and is subject to garnishment. 

As a stranger to the probate estate proceedings, the only way the judgement creditor can participate in them is to file a Motion to Intervene under Civ.R. 24, with the proposed Complaint/Creditor's Bill attached.  The Motion and any supporting memorandum should address the essential elements for the creditor's bill and establish the grounds for the intervention.  The Motion should be served as provided in Civ.R. 5.

 

 

Will Contests

RC 2107.71 states that any interested party may file a civil action in the Probate Court to contest the validity of a will (including  a codicil) that has been admitted to probate and that also (a) has not been previously declared valid through a pre-death validity proceeding, and (b) was thereafter retained for safekeeping by the court until admitted to probate.  

There can be no contest in Ohio of a will executed and proved according to the law of another state or foreign country. (RC 2107.48)

The contesting party has the burden of proof to establish by a preponderance of the evidence the basis of the claim, to wit; either that the testator was mentally incompetent to write a will, the testator was subject to undue influence in the preparation of the will, the instrument admitted to probate was revoked, or is a forgery.  This burden shifts from the contestant only if the contest involves a will in which there was an attorney-client relationship between maker of the will and the attorney, the attorney is a beneficiary in the will, the attorney actively participated in the preparation of the will, and was not related by blood or marriage to the maker.

A Will Contest must be filed within three months after the filing of the Certificate (see RC 2107.19(A)(3)) that all interested persons were given or waived notice of the admission of the will to probate.  The filing of the Certificate commences the running of the three month filing deadline.  The passage of the deadline without the commencement of a will contest is forever binding, except as to persons under a legal disability, and as to them four months after removal of the disability.

The necessary parties to the Complaint are set forth in RC 2107.73.

During the Will Contest proceeding the powers of the fiduciary are limited to those set forth in RC 2113.21 and the Court may require additional bond or security, as it determines is proper.

Upon proper and timely request the issues in a Will Contest will be determined by a jury.  The civil rules of procedure apply to the proceedings, except as otherwise provided in the probate statutes.


Items Necessary to File a Will Contest:

  1. Prepare a Complaint joining all necessary parties and file it in the county where the will or codicil was admitted to probate;
  2. File written request for service and sufficient copies of the complaint for each party required to be served; and
  3. The base court cost deposit is one hundred sixty dollars ($160.00).

Pre-Death Admission of Will

STATEMENT IN LIEU OF FREQUENTLY ASKED QUESTIONS

Ohio is one of only a few states that provide a procedure for individuals to apply to have their will declared to be valid prior to their death.  The process is intended to provide a means by which an individual making the will can assure that the last will and testament cannot be contested after the maker’s (testator’s) death.

Ohio’s statutes (RC 2107.081 to .085) contemplate that a maker of a will may file in the maker’s county of domicile a Complaint (a Petition) for a Declaration of the Validity of the maker’s last will and testament.  This filing necessarily places the testator, the next of kin who would inherit under the law if there was not a will, and the beneficiaries named in the will in adversarial positions.  Notice of the filing is given to all interested parties and a hearing is held where an examination of made of the testamentary capacity, the compliance with the will formalities statutes, and the presence of undue influence or duress.

Unascertainable beneficiaries are represented by the doctrine of virtual representation by persons with a similar interest or by a guardian ad litem.

At the conclusion of the proceedings the Court issues a declaration determining whether the will is valid.  If it is determined to be valid the will is sealed and retained on deposit by the Court until death and is available only to the testator.  If the will is removed from the Court by the testator the declaration of validity is a nullity and the will may be contested following death by interested persons.

The process can be disruptive to the family unit.  Another potential downside for contesting parties is that the next of kin and prospective heirs must bear the costs of the litigation well prior to receiving any of the benefits.  The major benefit is that the determination is being made when the evidence and testimony are available – prior to the testator’s death.

The procedures for modification or revocation of a will that has been previously declared valid through this process are set forth in the applicable statutes.

Under current statutes, the pre-death process is available only to determine the validity of wills.

Election For The Surviving Spouse To Purchase Real Estate At Appraised Value

A surviving spouse has a right to elect to remain in the “mansion house” rent free for a period of one year following the death of a spouse, unless the property must be sold to pay debts.  If a sale is necessary before the expiration of the one year term the surviving spouse must be compensated from the sale proceeds for the loss of the full term at the fair rental value for the property as provided in RC 2106.15.  Payment of this compensation has the same priority as the support allowance.  Applying this code section requires special care.

A surviving spouse also has a right to elect to receive the mansion house as part of the spouse's share of an intestate estate and the allowance of support as provided in RC 2106.10.  The valuation calculations are set forth in the statute.  The death of the spouse before making the election terminates the right to make the election as no other person can make it for the spouse or the spouse's estate.  Applying this code section requires special care.

The surviving spouse also has another important interest in the "mansion house" that may only be exercised within a very narrow window of time and under specific conditions.  If the property has not been specifically devised or bequeathed in the will, a petition may be filed by the surviving spouse indicating an election to purchase the “mansion house” real estate at the value it has been appraised in the estate.  The statute (RC 2106.16) specifies what the election filing must contain.  The election to purchase complaint by the surviving spouse will be opened as a companion case to the estate case.  The statutory definition of "mansion house" should be reviewed as it may include the decedent's household goods located in the home as well as adjacent lots or farm land used with it as the decedent's home.  The death of the spouse prior to the filing of the Court's entry establishing the terms of payment nullifies the election.

Items Necessary to File an Election Complaint by the Surviving Spouse to Purchase Real Estate (the Mansion House) at Appraised Value

  1. Prepare an election in Complaint format to be filed by the Surviving Spouse;
    • The Complaint must contain:
      1. An affirmative statement of the election of surviving spouse to purchase at appraised value;
      2. The legal Description of real estate to be purchased with County Engineer’s Map Department stamp of approval of the description of the “Mansion House” property;
      3. Join as defendants the fiduciary and interested parties including the mortgagee and other lien holders to be notified; include a prayer of the surviving spouse for the Court to issue an order confirming the election to purchase; (per statute spouses of defendants need not be joined);
      4. Attach a copy of the Inventory and Appraisal that was filed in general estate case that includes the mansion house property; and
      5. The Complaint CANNOT be filed until after the Inventory and Appraisal has been filed and not more than one month after approval of the Inventory.
  2. File written request for service and copies of the Complaint on each party requiring service;
  3. The base court cost deposit is one hundred sixty dollars ($160.00);
  4. If an Answer to the Complaint is filed, the Complaint will be set for a hearing and notice of the hearing date will be given to all parties in interest, not in default of Answer;
  5. Obtain an Entry on the Complaint that states:
    1. Finds in favor of the surviving spouse, upon a finding that it does not appear that the appraisal was made as a result of collusion or fraud and that it is not so manifestly inadequate that a sale at that price would unconscionably prejudice the rights of the parties in interest or creditors;
    2. Fixes the terms of payment to the executor or administrator for the property, having regard for the rights of creditors of the estate;
    3. Orders the executor or administrator, or a commissioner appointed to act as the conveying fiduciary, to transfer the property to the spouse upon compliance with the terms fixed by the Court; and
    4. Dispenses with additional bond or order additional bond, depending on the decedent’s will.
  6. Issue a fiduciary’s deed to surviving spouse for transfer and recording; and
  7. Make a final return of sale or file a report of distribution with the Court.