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An important part of making a will is naming an executor to carry out its terms after you are gone. It is essential not only to nominate an executor, but one or more alternates who can act if your first choice either predeceases you or is unavailable to serve for some other reason. If your will fails to name a qualified executor or alternate, Ohio law determines who will ultimately oversee your estate, which in some instances may lead to unnecessary litigation among family members vying for the role.

A Recent Example

Last year, a woman in Cuyahoga County passed away. She did leave a will, which was signed about nine years earlier. She named her husband as executor. Unfortunately, he died about six months before his wife did. And the wife’s will did not name an alternate executor.

The couple had no children. The woman’s closest living relatives were a sister and several nieces. One of the nieces asked a probate court to name her administrator of the estate. (An administrator is the same thing as an executor in this context.) But another individual, a cousin of the deceased woman’s husband, filed a competing petition. The cousin previously held the power of attorney for both the deceased and her husband, and she claimed at the time of the wife’s death, she was managing a cash account worth more than $1.2 million.

Neither the niece nor the cousin were named beneficiaries in the will. The niece argued she was still entitled to appointment as executor over the cousin because she was a blood relative of the deceased. Under Ohio law, if a will fails to name a qualified executor, the “next of kin” has priority appointment as administrator. If there are no next of kin, or if such persons are deemed unsuitable for any reason, the court may name a “suitable person” as administrator.

In this case, the probate court decided neither the cousin nor the niece should be named administrator. The niece was not “next of kin,” because she was not a named beneficiary of her aunt’s will. It did not matter if the niece was a blood relative; she had no legally protected interest in her aunt’s estate. As for the cousin, the court deemed her unsuitable because of her conduct as power of attorney for the deceased couple. The court said it was “troubled by the lack of a complete accounting” and expressed concern the cousin would not provide the beneficiaries of the will “with the assurance that the fox isn’t guarding the henhouse.” Accordingly, the court decided to name a “reasonably disinterested” person as administrator to ensure the terms of the will are properly carried out. The niece appealed this decision, but the Ohio Court of Appeals, Eighth District, affirmed the lower court’s order.

Contact an Estate Planning Lawyer

These types of disputes are completely preventable. Not only should you name one or more alternate executors in your will; you should periodically review and revise your estate plan to account for changes in circumstances, such as the death of a spouse or other person named in your will. An experienced Ohio estate planning attorney can assist you with this and many other issues. Contact the Law Office of John C. Grundy today if you need help today.