How long do I have to present a claim against a decedent's estate?

It depends on the category of claims. The categories 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 giving 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):

• To the executor or administrator in writing
• 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
• 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 general 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.

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 properly 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 chosen 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:

• Decedent must have been domiciled in Jackson County at death
• Certified copy of the decedent’s Death Certificate (the Deputy Clerk will make a copy and return the certified copy to you)
• Copy of Driver’s License or Government issued picture ID of the applicant (if filed without an attorney)
• 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
• 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)
• There are base court costs

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

Under RC 2113.03, a surviving spouse may inherit the entire estate, without administration, if the value of the gross estate is $100,000.00 or less.

If there is not a surviving spouse, the heir(s) may be entitled to inherit without administration provided the gross estate has a value of less than $35,000.00. In either instance, relatively minimal relief proceedings are required to be filed with the probate court.

The guidelines for the determination can be found on the Application to Relieve Estate from Administration, Form 5.0. Also, the frequently asked questions set forth below should be considered as the applicable dollar limits may be reduced for decedent’s dying in particular years. Loc.R 75.5 also should be reviewed.

Items necessary to file a Release from Administration with a Will:

• Certified copy of the decedent’s Death Certificate (the Deputy Clerk will make a copy and return the certified copy to you)
• Copy of the your Driver’s License or Government issued picture ID (if filed without an attorney)
• Paid funeral bill with proof of who paid the funeral bill; If you are probating the Will, you will need Waivers from those listed on both sides of the Form 1.0, or give Notice of Admission of the Will to them and then file the Certificate of Service of Notice of Probate of Will (Form 2.4) with proofs of service or waivers. There will be an additional fee if the will is admitted
• If you are filing the Will “For Record Only”, you will need to present the original will and the Application to File Will For Record Only (DCPC Form 2.0R). There is an additional filing fee for this filing.
• If you have any Titled Vehicles to transfer, you will need to file DCPC Form 9.3A or Form 9.C for each vehicle, provide a copy of the auto title (if available), and provide either a print out of the vehicle’s value from the Internet or an appraisal from an auto dealer. There is an additional charge per vehicle.
• Copies of documentation, or appraisals, establishing the value of all bank accounts, contracts, or other assets for which release is requested. You may elect to use the County Auditor’s market valuation as the estate valuation for the real estate instead of having a fair market value appraisal. Then the value should be annotated as the “auditor’s valuation” with a copy of the County Auditor’s property record card identifying the parcel and the owner(s) attached. A motion to dispense with the real estate appraisal is not required when using the County Auditor’s valuation. If you do not have the date of death valuation for an asset, you will need to complete and file the Motion for Authority to Obtain Release of Information; Complete a Medicaid Recovery Acknowledgment form.
• There is a base court cost.

**The Estate Tax filings are not required for decedents dying after December 31, 2012.

Items necessary to file a Release from Administration without a Will:

• Certified copy of the decedent’s Death Certificate (the Deputy Clerk will make a copy and return the certified copy to you)
• Copy of Driver’s License or Government issued picture ID
• Certified Marriage Abstract, if filing as the Surviving Spouse
• Paid funeral bill, with indication of who paid it
• Waivers from any family members who would also have the right to inherit under the Ohio statute of descent and distribution
• If you have any Titled Vehicles to transfer, you will need to file a DCPC Form 9.3A or Form 9C for each vehicle, provide a copy of the auto title (if available), and a print out of the vehicle’s value from the Internet or an appraisal from a car dealer. There is an additional five dollar ($5.00) charge per vehicle
• Copies of documentation, or appraisals establishing the value of all bank accounts, contracts, or other assets for which release is requested. Absent the date of death valuation for an asset, then also a Motion for Authority to Obtain Release of Information
• Complete a Medicaid Recovery Acknowledgment form
• There is a base court cost.

**The Estate Tax filings are not required for decedents dying after December 31, 2012.

Real Estate Only – No Administration [RC 2113.61(D)] – If there has been no estate administration, and none is contemplated, an Application for Certificate of Transfer (Form 12.0 – with all applicable boxes and no administration box checked) may be filed by an heir, devisee, or a successor in interest for the transfer of the decedent’s real estate interest.

The Court also requires proof of death of death; satisfactory evidence of the decedent’s ownership interest (attorney opinion of title or County Auditor’s duplicate reflecting ownership, and if more than one owner, then also the County Auditor’s background page); a completed Form 1.0 (Surviving Spouse, Children, Next of Kin, Legatees and Devisees); 2 copies of the proposed typed Certificate of Transfer (Form 12.1 – with required Map Room approval stamps for Jackson County real estate; also pre-approval recommended for out-of-county real estate); documentation to establish to whom the interest devolves (the will, if any must be filed and admitted when needed to establish the proposed transferee’s right to succeed to the property).

This procedure cannot be used until 6 months after the death of the decedent, unless the surviving spouse is entitled to 100% of the family allowance and the real estate interest valued is established at not more than $40,000.

A Short Form Release from Administration may be filed if the decedent’s assets are one thousand dollars ($1,000.00) or less.

A paid funeral bill must be submitted by the Applicant and if the funeral was not pre-paid, the person paying the funeral must consent to the distribution proposed in the Application. A Short Form Release cannot be used to transfer real estate or a titled vehicle.

Items necessary to file a Short Form Release:

• Certified copy of the decedent’s Death Certificate (the Deputy Clerk will make a copy and return the certified copy to you)
• Copy of Driver’s License or Government issued picture ID
• Paid funeral bill which indicates who paid for the funeral expenses with a consent from the payor, if not prepaid
• If the decedent has a Will, you may file the original will “For Record Only” for an additional charge or Probate the Will for an additional charge
• Copies of documentation establishing the value of all assets for which the short form release is requested
• Complete a Medicaid Recovery Acknowledgment form
• There is a base court cost.

If there is a situation in which an estate otherwise qualifies for a full Relief from Administration and:

• the assets to be relieved do not include titled vehicles or real estate
• the decedent’s probate assets to be relieved have an established value as of the date of death of not more than $1,000
• consents to the proposed distribution are filed from all of the persons who would inherit the estate (beneficiaries under the will, or next of kin if there is no will)
• the funeral bill has been paid and the Applicant is the person who paid it, the payor has consented, or it was prepaid
• and creditors will not be prejudiced.

then the abbreviated Short Form Release from Administration procedure may be followed.

This procedure is not available if the funeral bill is unpaid, the estate is insolvent, if the value of the asset cannot be established, or if the estate beneficiaries or funeral payor are unwilling to consent.

RC Sections 2113.15 through 2113.17 provide that when there is a delay in granting Letters of Authority appointing an estate fiduciary, or there is a delay in opening an estate, the Probate Court may appoint a special administrator for the decedent’s estate:

1. To collect and preserve the effects of the decedent and grant such other authority as the Court considers appropriate
2. To receive the debts of the decedent
3. To complete such other duties as the Court authorizes and considers appropriate.

The special administrator’s duties shall end upon the appointment of the general estate fiduciary and the special administrator shall then transfer to the general fiduciary the assets in the possession or control of the special administrator and report the details of all claims that have been submitted.

The special administrator must file an account within 30 days of the appointment of the general administrator and shall be compensated from estate assets in such amount as the court determines appropriate.

When there is a delay in the appointment of the general fiduciary, creditors of the decedent should consider seeking the appointment of the special administrator sufficiently before the expiration of the 6 month’s post death claim filing deadline in order to allow time for the Court to process the application, give notice to those with a priority right to administer the estate (see, In re Estate of Tullos, 2012-Ohio-1114, 5th Dist. and Sup.R. 60(A), and secure the appointment of the special administrator.

If the special administrator has received claims during the special administration Loc.R. 62.2 should be reviewed to determine the method of reporting those claims to the general estate fiduciary.

Items necessary to file a Special Administration

1. Certified copy of the Decedent’s death certificate.
2. A base court cost deposit.
3. Complete the Probate Forms.

Under RC 2113.031, a Summary Release from Administration may be filed under only two circumstances:
1. When (a) The applicant is the surviving spouse and is entitled to 100% of the family allowance (i.e. there are no minor children of the decedent who are not also children of the surviving spouse), (b) the funeral (and burial) expenses have been prepaid or the surviving spouse has paid or is obligated in writing to pay the decedent’s funeral expenses, and (c) the value of the decedent’s assets do not exceed $40,000, plus the lesser of $5,000 and the decedent’s funeral expenses paid or owed by the spouse; OR
2. When the applicant who is not the surviving spouse, has paid, or is obligated in writing to pay, the decedent’s funeral (and burial) expenses and the value of the decedent’s assets is the lesser of (a) $5,000 or (b) the amount of decedent’s funeral (and burial) expenses.

Items necessary to file a Summary Release from Administration:

• Certified copy of the decedent’s Death Certificate (the Deputy Clerk will make a copy and return the certified copy)
• Copy of Driver’s License or Government issued picture ID
• Certified Marriage Abstract, if filing as the Surviving Spouse and spouse is not named in the Will or a Will does not exist
• Funeral bill which indicates who paid the funeral expenses, or who is obligated in writing to pay them
• If the decedent has a Will, file the original will “for Record Only” for an additional charge of five dollars ($5.00)
• If transferring a motor vehicle, provide a copy of the title and a print-out of the vehicle’s value from the Internet, a recognized appraiser, or a motor vehicle dealer
• Copies of documentation establishing the value of all bank accounts, contracts, or other assets for which summary release is requested. If you do not have the valuation for an asset, you will have to complete and file the Motion for Authority to Obtain Release of Information
• Complete a Medicaid Recovery Acknowledgment form
• There is a base court cost.

**Note: The Ohio Estate Tax filings are not required for decedents dying after December 31, 2012.

Note: The Ohio Estate Tax filings are not required for decedents dying after December 31, 2012.

• Original signed will of the decedent
• A base court cost,
• Tax forms, if filing taxes (information below on what forms are required) and an additional five dollars ($5.00) will be due
• In addition, you will need to complete the Probate Forms listed below. The Probate Form 1.0 (Surviving Spouse, Children, Next of Kin, Legatees and Devisees) is a required attachment to the Application to File Will for Record Only.

If there is non-probate real estate of the decedent, care should be taken to attach a legal description of all of the decedent’s non-probate real estate to the Form 22, Part I. This information is essential to real estate title examiners.

1. If an estate tax return is required and tax is due, then 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 Ohio Estate Tax Form 5;
3. Original Form 22, in duplicate (Part I and II, as Part I and Part II must be delivered by the filer to the County Auditor with the copy of the tax return and Form ET-5 for a secondary filing and stamping; and
4. A copy of all the ET-2 attachments that will be filed with Auditor’s Office. Once this is filed, the County Auditor’s Office will provide a “pay-in” form and directions for paying the taxes at the County Treasurer’s Office.
2. If an estate tax return is required and no tax is due, then 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.
3. 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).
4. The staff of the Probate Court will neither deliver the filings to the County Auditor nor deliver the tax payments to the County Treasurer.
5. 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.

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 Jackson 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 Jackson 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. Pay a base court cost.
7. Complete probate forms.

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