Producing the Will
The court may issue a citation, attachment or warrant to compel the person who has possession of the Ohio Will to produce it before the court. A request for such order may be made by the executor or any other interested person. s2107.09
If the person having custody of the Will withholds, he/she may be committed to the county jail and kept in close custody until the Will is produced.
Proving the Will
The probate court has the power to admit an Ohio Last Will and Testament to probate simply on the face of the document (if it appears to have complied with the execution requirements). However, the court may request the witnesses’ testimony. s2107.18
Notice of Probate
Once probate has been granted, notice of the fact must be given:
- within two weeks of the probate order;
- by the estate fiduciary, the person who applied for probate, the applicant for a release from administration, any other interested person or by any such person’s attorney;
- to the surviving spouse, all persons who would be entitled to inherit under intestate succession laws and to all beneficiaries named in the Ohio Will. s2107.19
The person who gives notice must file a certificate of notice with the court within two months after the fiduciary has been appointed. If no fiduciary has been appointed then the certificate must be filed within two months of probate.
What if the Will is not witnessed?
An Ohio Last Will and Testament may still be admitted to probate even if not witnessed if it can be proved:
- the deceased prepared the document (or had someone else prepare it for them);
- the decedent signed the document and intended it to constitute his/her Will;
- two or more witnesses saw the decedent sign the document. s2107.24(A)
Do not rely on this provision in order to make a valid Ohio Will. Always follow the strict execution requirements.
If the above requirements are established, then the executor may file an action to recover court costs and attorney’s fees from the lawyer (if any) responsible for the execution of the document. s2107.24(B)
What if the Will is lost, spoliated or destroyed?
The court may nevertheless admit the Ohio Will to probate if:
- the applicant can clearly and convincingly prove:
- the Will was executed with the required formalities;
- the contents of the Will; and
- no one is able to establish (by a preponderance of evidence) that the testator had revoked the Last Will. s2107.26
Appointing a Personal Representative
Once the Ohio Last Will & Testament is approved, the probate court issues letters testamentary to the executor named in the document. s2113.05
If the Will does not name an executor or give power to name an executor or if the executor is unable or unwilling to act, then the court appoints another personal representative by issuing letters of administration with the Will annexed.
The administrator must be a suitable person who is a beneficiary named in the Ohio Will or who would have been entitled to administer the estate if the decedent died intestate (which includes the surviving spouse and next of kin).
The Will may exclude any person from being granted letters of administration. If no person is deemed suitable, then the court may appoint some other suitable person. s2113.05