Estate and Elder Law

Ohio Court Refuses to Appoint Independent Attorney to Administer Estate where Creditors/Assets Were Lacking and Alleged Misdeeds Were Unproven/Uninvestigated

A will that identified the sole vested beneficiary as "Ryan Living Trust" made the following provision for the distribution of property:

"I 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 known assets."

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 subscribers / unenhanced version available from lexisONE Free Case Law], Michael Ryan relied on R.C. 2113.05 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."

R.C. 2113.05 notwithstanding, the court noted that:

The 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.

Where, 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 fiduciary."

(footnotes and citations omitted)

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:

Ryan 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.

(citations omitted)

. . . .

Explore the Estates, Gifts & Trusts and Elder Law resources

Discover the features and benefits of LexisNexis® Tax Center

For more information about LexisNexis products and solutions connect with us through our corporate site.

  • Anonymous

    Valuable information you got here! I would like to thank you for sharing your thoughts and time into the stuff you post!! Thumbs up