By
Craig T. Matthews, Esq.
Cases, Estate Planning
INTRODUCTION
After a death in Ohio involving wrongful conduct, the probate court of the county where the victim died determines who will represent the estate of the decedent. When the decedent was married at the time of their death, an issue before the probate court is whether the court may look beyond the fact that the decedent technically was a spouse at the time of their death. There is persuasive Ohio case law holding that a court may look beyond marital status and into other aspects of the relationship to determine if an applicant is “suitable” to be appointed as administrator of an estate when the estate is being opened for the purpose of a wrongful death action.
DISCUSSION
It is within the probate court’s discretion to determine who would be most suitable to act as administrator of the estate. Suitability goes beyond the minimum statutory requirements and involves how fit a person is to handle the estate and the interests of those connected to it.
Ohio courts have defined what constitutes a “suitable person”
The Ohio Supreme Court has stated that a “suitable person” is one who “. . . is
‘reasonably disinterested’ and in a position to ‘reasonably fulfill’ the obligations of a fiduciary.” In re Estate of Henne, 421 N.E.2d 506, 509 (Ohio 1981) (emphasis in original). “The word ‘suitability’ is not defined by statute, and, therefore, its limits are only established by and through case law analysis.” Id at 508.
In determining whether an applicant is reasonably disinterested, and therefore suitable, the court may consider “. . . the nature and extent of the hostility and distrust among the parties . . . [.]” In re Estate of Amoroso, 2015-Ohio-3352, ¶ 17 (8th Dist. Ohio Ct. App.) (Emphasis added). Furthermore, courts also look at evidence that may impugn the moral character, or any evidence of a criminal record or any other reason which would affect the applicant’s fitness to serve as administrator of the estate. In re Estate of Robertson, 498 N.E.2d 206 (8th Dist. Ohio Ct. App. 1985).
The 4th District Court of Appeals judged the capabilities of an applicant by standards such as, “. . . soundness of moral principle and character, as shown by th[e] persons’ dealings with others in the making and performance of contracts and in the person’s fidelity and honesty in the discharge of trusts.” In re Estate of Nagle, 317 N.E.2d 242, 245-46 (4th Dist. Ohio Ct. App. 1974). Furthermore, the court stated that “[c]ompetency and suitability are words used as synonyms for probity, honesty and uprightness in business relations with others.” Id. at 246.
ORC 2113.05 and ORC 2113.06 must be construed together when determining suitability
ORC 2113.05 dictates to whom letters testamentary shall be granted when there was a will. Ohio Rev. Code Ann. § 2113.05 (Page, Lexis Advance through file 124 (HB 260)). ORC 2113.06 dictates to whom letters of administration shall be granted when a person dies intestate. Ohio Rev. Code Ann. § 2113.06 (Page, Lexis Advance through file 124 (HB 260)). Although ORC 2113.06 deals with persons who have died intestate, it has been held that ORC 2113.05 should be read in pari materia with ORC 2113.06 when determining the suitability of an administrator. Driggers v. Osdyke, Portage No. 96-P-0004, (11th Dist. Ohio Ct. App. 1996).
ORC 2113.06 provides that letters of administration will not be granted to anyone found unsuitable to discharge the duties of administration. In re Estate of Roch, 610 N.E.2d 524 (9th Dist. Ohio Ct. App. 1991). An identical provision is found in Ohio Rev. Code Ann. § 2113.05, dealing with the issuance of letters testamentary. Id.
The Ohio 10th District Court of Appeals held that ORC 2113.05 grants the probate court the authority to exercise reasonable discretion in determining if an applicant for letters testamentary is a competent and suitable person. In re Estate of Young, 212 N.E.2d 612 (10th Dist. Ohio Ct. App. 1964).
The court further stated, “[i]t is equally clear, particularly in states like Ohio where suitability is a criterion, that ‘an adverse interest or standing may warrant or require the refusal of the appointment, depending upon the nature or extent of such interest, the relationship of the parties, or other circumstances involved in the particular situation.’” In re Estate of Young, 212 N.E.2d 612, 616 (10th Dist. Ohio Ct. App. 1964); In re Estate of Henne, 421 N.E.2d 506, 509 (Ohio 1981).
A surviving spouse is not necessarily suitable to act as administrator
The Ohio 9th District Court of Appeals affirmed the trial court decision declining to appoint an “unsuitable” surviving spouse as administrator of her deceased husband’s estate. In re Estate of Roch, 610 N.E.2d 524, 526 (9th Dist. Ohio Ct. App. 1991). The surviving spouse attempted to argue that ORC 2113.06 required that the trial court grant her the appointment, as she had priority. Id. at 525. The court said that ORC 2113.06 provides that letters of administration will not be granted to anyone found unsuitable to discharge the duties of administration. Id.
The 9th District Court reiterated the holding of the Supreme Court of Ohio, which was, “in construing R.C. 2113.05, the statute places in the probate court the authority to exercise discretion in determining who is a suitable person to manage an estate.” Id. (citing In re Estate of Henne, 421 N.E.2d 506 (Ohio 1981)). The sole purpose for the decedent’s estate being opened was to pursue a wrongful death case, as he had no assets. Id. at 524. The court felt as though the wife was not going to be able to properly bring that claim because it was against a family member. Id. The 9th District Court concluded that there was evidence to show that the surviving spouse, by virtue of her relationship to the other parties, and the conflicts, were she to bring the wrongful death case, rendered her unsuitable to perform the duties in the administration of decedent’s estate. Id. at 526. Although the facts are not entirely analogous to the present case, involving the Rogers, the principle, that a spouse is not necessarily suitable to bring a wrongful death claim, and therefore not suitable to be administrator, is reinforced.
CONCLUSION
Many Ohio courts have held that suitability goes beyond minimum statutory requirements and turns on factors such as probity, honesty, disinterest, hostility and the relationship with the other parties. It is well within the probate court’s discretion to not appoint a spouse as the administrator and to appoint another, more suitable applicant to bring the wrongful death lawsuit.
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