Detailed Answer
Short summary: In Ohio, an older will remains the decedent’s controlling testamentary document unless it was revoked. To finish probate and obtain legal authority to sell estate real estate you must (1) have the will admitted to probate (or determine that no valid will exists), (2) obtain letters testamentary or letters of administration from the probate court, (3) confirm whether the will or statute gives the fiduciary power to sell, and (4) get any court orders or title-company documentation required to complete the sale. The probate court oversees the process and can grant explicit sale authority if needed.
1. Confirm whether the will is valid and current
Do not assume a later life event (like divorce, a later will draft, change in assets, or beneficiary predeceasing the testator) automatically invalidates the older will without review. A will dated earlier remains valid unless it was revoked by a later will or formal revocation act. You start by locating the original will and checking for codicils or later wills. Ohio’s statutory rules on wills and execution are in Chapter 2107 of the Ohio Revised Code: Ohio Rev. Code Chapter 2107 (Wills).
2. Open probate and have the will admitted
If the decedent’s assets remain in the decedent’s name, you (or someone acting on behalf of the estate) must present the will to the local probate court to open an estate and have the will proved (admitted to probate). The court determines authenticity and appoints a fiduciary (executor named in the will or, if needed, an administrator). The court will issue official paperwork—commonly called letters testamentary or letters of administration—that prove the fiduciary’s authority to act for the estate.
3. Inventory, value the estate, and notify interested parties
After appointment, the fiduciary must gather the estate’s assets, prepare an inventory and valuation, and serve or notify heirs, beneficiaries, and creditors according to Ohio probate rules. This step identifies whether the estate has debts or tax obligations that require sale of assets to satisfy.
4. Determine the fiduciary’s sale authority
Authority to sell real property can come from several sources:
- The will itself: If the will expressly grants the executor power to sell real estate, the executor generally can sell under those terms (subject to court supervision as required).
- Statutory or court authority: When the will is silent or insufficient, the fiduciary may need a court order or rely on statutory powers to sell estate property to pay debts, administration expenses, or to carry out the testator’s intent. The probate court can issue an order authorizing sale where appropriate.
- Title and co-ownership issues: Property owned jointly with right of survivorship, property held in trust, or assets with transfer-on-death designations typically pass outside probate and do not require probate sale authority.
Ohio law on descent and distribution helps determine who gets property if the will is invalid or a beneficiary predeceased the testator; see Ohio Rev. Code Chapter 2113 (Descent and Distribution). If you rely on statute or a court order to sell property, be prepared to show the court the estate inventory, creditor claims, distribution plan, and how the sale serves the estate.
5. When a court order is wise or required
Even when an executor has apparent authority, title companies or prospective buyers commonly ask for one of these items before closing:
- Certified copy of letters testamentary or letters of administration.
- Certified copy of the death certificate.
- A court-ordered decree or order authorizing sale (especially if the will is ambiguous, beneficiaries disagree, or the property is the estate’s primary asset).
If beneficiaries object, if the will is outdated and facts have changed materially (for example, the named executor or a major beneficiary has died), or if the title company will not close without it, ask the probate court for a specific order authorizing the sale. The court can (and often will) supervise sales, set terms, or require notice/advertising to protect interested parties.
6. Pay debts, taxes, and distribute proceeds
Proceeds from a sale may first be used to satisfy valid creditor claims, taxes, and administration costs. Only after paying obligations can the fiduciary distribute the remaining funds to beneficiaries per the will or, if there is no valid will, under Ohio’s intestacy rules (see Chapter 2113 linked above). Keep records and follow the court’s accounting and reporting requirements when closing the estate.
7. Practical examples (hypothetical)
Example A: An executor named in a 2005 will admits the will to probate. The will gives the executor power to sell estate real estate. The probate court issues letters testamentary. The executor obtains a certified copy of letters and the death certificate, provides creditor notice, and completes the sale. The sale proceeds pay debts, and the executor distributes the remainder.
Example B: A 1998 will names a beneficiary who predeceased the decedent. No codicil exists. The executor opens probate and asks the court to interpret the will and confirm whether an alternative beneficiary takes the share. The court resolves the dispute and issues any sale authorization necessary. If beneficiaries cannot agree, the court’s order resolves title concerns for buyers and title companies.
8. Common title and closing issues
Title companies typically require clear evidence of the fiduciary’s authority. If the estate will sell real property, expect to provide the original will, certified letters, a death certificate, and possibly a court order. If the property is encumbered (mortgage, lien), plan for payoff at closing. If ownership is joint with a right of survivorship or held in trust, probate may not be necessary for sale—confirm with county records and the title company.
9. When to seek a lawyer
Consider hiring a probate attorney if:
- The will seems outdated, ambiguous, or possibly revoked.
- Beneficiaries dispute the will or the sale.
- The estate is complex (real estate as the primary asset, multiple creditors, tax issues, or multi-state assets).
- Title companies demand a court order to close.
An attorney can prepare and file the needed pleadings for admission of the will, for court authorization of a sale, or for other probate motions.
Key Ohio statutory resources
- Wills and probate procedure references: Ohio Rev. Code Chapter 2107 (Wills).
- Descent and distribution (intestacy rules): Ohio Rev. Code Chapter 2113 (Descent and Distribution).
Disclaimer
This article is informational only and not legal advice. It explains general Ohio probate concepts and steps to obtain authority to sell estate property. For legal advice about a particular estate, contact a licensed Ohio probate attorney or the local probate court.
Helpful Hints
- Locate the original will and any codicils before contacting the court; the original document is usually required for probate.
- Obtain certified copies of the death certificate early; most institutions require them.
- Get certified letters testamentary or letters of administration from the probate court—title companies and banks will ask for them.
- If the will is older, check for codicils, later wills, or life events (marriage, divorce) that can affect validity.
- Confirm ownership format (joint tenancy, trust, TOD) because assets titled outside probate do not need probate sale authority.
- Ask the probate court for an order authorizing sale if beneficiaries disagree or if the title insurer requires it—this protects buyers and fiduciaries.
- Keep meticulous records of inventories, notices, receipts, and distributions to simplify court accounting and close the estate cleanly.
- When in doubt, consult a probate attorney before marketing real estate; an attorney can reduce delay and mitigate closing risks.