A will that identified
the sole vested beneficiary as "Ryan Living Trust" made the following
provision for the distribution of property:
give all of my property of whatever nature and kind and wherever located to my
revocable living trust of which I am a Trustor: known as: MARION C. RYAN,
Trustee, or her successors in trust, under the RYAN LIVING TRUST dated JUN[E]
08 1995 and any amendments thereto."
A dispute arose
between the testator's children, Michael Ryan and Patricia Janowicz. By request
of Michael Ryan's attorney, an independent attorney filed an Application for
Authority to Administer Estate. The estate was described as having "no
The application was
denied, and Michael Ryan sought review. Michael argued that the appointment of
an independent administrator was necessary to perform due diligence in
determining whether the estate should sue Patricia Janowicz, the designated successor trustee, for conversion,
breach of fiduciary duty, undue influence, unjust enrichment, and accounting.
In Estate of Ryan, 2011 Ohio 3891 (Ohio Ct.
App., Lake County Aug. 5, 2011) [enhanced
version available to lexis.com subscribers / unenhanced
version available from lexisONE Free Case Law], Michael Ryan relied on R.C.
for the proposition that the probate court was required to appoint an executor
and/or administrator for the decedent's estate. The statute provides, in
relevant part: "When a will is approved and allowed, the probate court shall
issue letters testamentary to the executor named in the will," or, if
there is no suitable executor, "the court shall grant letters of
administration with the will annexed to some other suitable person."
2113.05 notwithstanding, the court
obligation to administer an estate, however, is not absolute. The Ohio Supreme
Court has stated that "[t]he principal function of the fiduciary of an
estate under a will is to protect, preserve and pay out the assets according to
law and the will." Accordingly, "[w]here one has a claim against an
estate, it is incumbent upon him, if no administrator has been appointed, to
procure the appointment of an administrator against whom he can proceed."
Likewise, a probate court "may appoint a special administrator to collect
and preserve the effects of the deceased," where there has been a delay in
the granting of letters testamentary or of administration.
however, there are "neither creditors of the estate nor beneficiaries of
the will," and where there are no assets or property belonging to the
estate, there is "no purpose to be served by the appointment of a
In affirming, the court noted that there
were neither creditors of the estate nor assets in the estate and that the only
beneficiary under the will was the Ryan Living Trust. The court also noted that Michael
Ryan presented no evidence in support of the allegations against Patricia Janowicz
and/or actual claims that could be brought on behalf of the estate. The court
went on to state:
cites to no authority that only the executor and/or administrator may investigate
the administration of an estate. On the contrary, the Revised Code [2721.05] provides: "Any
person interested as or through an executor, administrator, trustee, guardian,
or other fiduciary, creditor, devisee, legatee, heir, next of kin, or cestui
que trust, in the administration of a trust, or of the estate of a decedent,
*** may have a declaration of rights or legal relations in respect thereto ***
[t]o determine any question arising in the administration of the estate or
trust." Accordingly, Ryan was able to bring suit in the probate court to
determine the validity of inter vivos transfers between the decedent and
Janowicz, as a fiduciary of the decedent, provided that the assets transferred related to the
administration of the estate.
. . . .
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