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When planning your estate, choosing who should serve in the role of an executor for your last will and testament is one of the most important decisions you will make. In Ohio, the executor of your will is entrusted with carrying out your final wishes and managing the administration of your estate after your passing.
Understanding the role of an executor under Ohio law can help you make an informed decision and set your loved ones up for a smoother probate experience. In this post, we’ll cover the duties, legal requirements, and potential challenges an executor may face, and include some tips for choosing the right person for the job.
An executor is the individual named in a will who is responsible for managing the estate of a deceased person, known as the testator. The role of an executor is to execute the instructions provided in your will in accordance with Ohio probate law, with a primary focus on overseeing the collection, inventorying, management, and distribution of the testator’s assets. Such a role requires integrity, diligence, and legal responsibility.
While you may grant your executor some discretionary power in determining how your assets (money and property) are to be distributed, they have a fiduciary duty to act in the best interests of your estate and its beneficiaries (including avoiding self-dealing, conflicts of interest, or any mismanagement of assets). Thus, their latitude is limited.
In the State of Ohio, the death of the testator precedes any start of the probate process. Probate is the court-supervised process that handles the distribution of the testator’s assets. Opening a probate matter is only necessary if the testator owned property or accounts solely in their name that did not transfer by operation of law (such as through having a designated beneficiary named on the account). The executor is the one who initiates and carries out the probate process.
Here’s how the probate process generally unfolds under Ohio law as pertaining to the role of an executor:
For more information, see The Supreme Court of Ohio’s County Probate Resource Guides.
Important Note: If the decedent dies without a will—known as dying intestate—then much greater court involvement is required. The court appoints an executor, determines who the beneficiaries are and how the assets are distributed. Dying intestate can even empower the state to choose the guardian of your minor children.
Although it may not be possible to avoid probate completely (such as when a guardian appointment is required for a minor child), it should be noted that lengthy timelines and higher costs can be reduced through careful estate planning.
Under Ohio law, the legal requirements for being an executor of an estate include:
It is advisable to name at least one alternative executor in case the initial appointee dies before you, refuses to serve, or is deemed mentally incompetent by the courts.
The executor named in the will carries out the testator’s final wishes. The executor is the testator’s representative in dealings with both the probate court and the beneficiaries. Their duties include:
This involves initially locating and valuing probate assets (meaning only the assets that are subject to probate) in the estate, and reporting such assets back to the probate court.
The executor must notify creditors and settle any outstanding debt obligations from estate funds. This may involve dealing with final utility bills, credit card debts, and medical expenses.
In addition to paying outstanding debts, the executor also serves to collect on any debts that may be owed to the estate (such as final paychecks, or invoices).
The executor is responsible for filing the final income tax return of the deceased and possibly an estate tax return, and for paying any final tax bills. While Ohio repealed its state estate tax in 2013, federal estate tax returns may be required for large estates.
Once debts and taxes are resolved, the executor distributes the remaining assets in accordance with the will. This process must be documented and approved by the probate court.
Important Note: An executor may also be named a beneficiary under the will. When serving in this dual role, the executor’s actions will be further scrutinized to ensure they are acting in the best interest of both the estate and the other beneficiaries.
Executors can face serious legal consequences if:
If a beneficiary believes that the executor is not acting in the estate or beneficiaries’ best interest, they can bring a case against the executor in court. However, this can freeze the probate process and can be lengthy and expensive. Moreover, any interested party can file a complaint with the probate court, seeking to have the executor removed or held liable for damages. The court may appoint a replacement executor in such cases.
An executor must follow the instructions stated in the will as closely as possible and to the best of their ability. They do not have the authority to make changes to the will. However, as mentioned earlier, the testator may grant the executor the discretion to make decisions on certain matters. A few of these special cases may include when to sell property, how to liquidate assets (e.g., distribute in-kind or convert to cash) and the extent of “reasonable and necessary” repairs to initiate on investment properties.
If the language in the will is unclear, the executor should seek guidance from the probate court or an estate planning attorney. Acting in good faith within the scope of the will typically protects executors from legal consequences. A petition to remove an executor or a lawsuit against the executor for breach of fiduciary duty will only succeed if there is evidence of misconduct, such as the executor explicitly going against the will or estate’s interests, acting in their own best interest, or withholding an intended gift from a beneficiary.
In Ohio, executors are entitled to a fee the court deems reasonable for their service. Such fees are more common when large assets (e.g., land, real estate) are involved. However, if the executor of the will is also a beneficiary, this fee may be waived.
When naming an executor in your Ohio will, consider the following:
You may also name a professional, such as a bank’s trust department or an estate planning attorney, to serve as executor or co-executor, especially for large or complex estates.
At Rhodium Law, our practice focuses primarily on estate planning services. More specifically, we help individuals and families create both will-based and trust-based estate plans with compassion and clear explanations. While in many cases it may be possible to avoid probate altogether with strategic planning, in other cases probate may become necessary due to how someone has chosen to structure their estate plan or the lack thereof. And if going through probate does become a reality for your loved ones, you will serve them well by making a wise choice as to who should serve in the role of an executor of your estate.
Whether you need assistance choosing an executor, or with creating a will or a trust, our experienced team is here to help. Call us today at (216) 699-8145, or schedule a complimentary strategy session with a member of our team.
