In re Estate of Tullos , 2012 Ohio 1114 ( 2012 )

[Cite as In re Estate of Tullos, 2012-Ohio-1114.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF THE ESTATE OF: : JUDGES:
: Hon. W. Scott Gwin, P.J.
WILLIAM LAWRENCE TULLOS : Hon. William B. Hoffman, J.
: Hon. Sheila G. Farmer, J.
:
: Case No. 11CAF090084
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas Court, Probate Divsion, Case
No. 210772-E
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT: March 16, 2012
APPEARANCES:
For Appellants For Estate
ARNOLD L. JACK AARON R. FALVO
572 East Rich Street 261 West Johnstown Road
Columbus, OH 43215 Columbus, OH 43230
Administrator For American Postal Workers' Union
J. MICHAEL EVANS JAY E. MICHAEL
261 West Johnstown Road 729 South Front Street
Columbus, OH 43230 Columbus, OH 43206
Delaware County, Case No. 11CAF090084 2
Farmer, J.
{¶1} On July 10, 2010, William Lawrence Tullos died. On December 30, 2010,
appellee, J. Michael Evans, filed an application for authority to administer the estate
pursuant to a creditor's claim (American Postal Workers' Union). The surviving spouse
and next of kin were not listed or notified. On January 3, 2011, the trial court granted
the application.
{¶2} On March 3, 2011, Mr. Tullos's wife and son, Shirley and William Tullos,
appellants herein, filed a motion to set aside the appointment of appellee as
administrator. By judgment entry filed August 24, 2011, the trial court denied the
motion.
{¶3} Appellants filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶4} "THE PROBATE COURT ERRED AS A MATTER OF LAW BY
OVERRULING APPELLANTS' MOTION TO SET ASIDE THE APPOINTMENT OF THE
ADMINISTRATOR WHEN APPELLANTS HAD NO NOTICE AND NO OPPORTUNITY
TO BE HEARD BEFORE THE COURT APPOINTED THE ADMINISTRATOR."
I
{¶5} Appellants claim the trial court erred in denying their request to set aside
the appointment of the administrator. Specifically, appellants claim appellee's failure to
list the "names of the surviving spouse and all the next of kin of the deceased" pursuant
to R.C. 2113.07 invalidated the trial court's appointment of the administrator. We agree.
Delaware County, Case No. 11CAF090084 3
{¶6} Appellee filed an application for authority to administer the estate under
R.C. 2109.02 and 2109.07, but failed to list the surviving spouse and next of kin.
Contemporaneously with this filing was a separate form (Form 1.0) listing the "surviving
spouse and next of kin."
{¶7} Without notice to the surviving spouse and next of kin, and without a
waiver of notice, the trial court proceeded to appoint appellee as administrator on
January 3, 2011. Appellants filed their motion to set aside the appointment on March 3,
2011, claiming the appointment was void and the matter should be dismissed.
{¶8} It is undisputed that R.C. 2113.07 governs the matter in this case and it
requires either waiver or notice by the probate court for the "purpose of ascertaining
whether they desire to take or renounce administration":
{¶9} "Before being appointed executor or administrator, every person shall
make and file an application that shall contain the names of the surviving spouse and all
the next of kin of the deceased known to the applicant, their addresses of usual
residence if known, a statement in general terms of what the estate consists and its
probable value, and a statement of any indebtedness the deceased had against the
applicant.
{¶10} "The application may be accompanied by a waiver signed by the persons
who have priority to administer the estate, and, in the absence of a waiver, those
persons shall be served notice for the purpose of ascertaining whether they desire to
take or renounce administration. Minors who would have been entitled to priority to
administer the estate except for their minority also shall be served notice pursuant to the
Rules of Civil Procedure.
Delaware County, Case No. 11CAF090084 4
{¶11} "Letters of administration shall not be issued upon the estate of an
intestate until the person to be appointed has made and filed a statement indicating that
the person has no knowledge of a will of the intestate."
{¶12} R.C. 2113.06 provides the following:
{¶13} "(A) Administration of the estate of an intestate shall be granted to persons
mentioned in this division, in the following order:
{¶14} "(1) To the surviving spouse of the deceased, if resident of the state;
{¶15} "(2) To one of the next of kin of the deceased, resident of the state.
{¶16} "(B) If the persons entitled to administer the estate under division (A) of
this section fail to take or renounce administration voluntarily, the matter shall be set for
hearing and notice given to the persons.
{¶17} "(C) If there are no persons entitled to administration, if they are for any
reason unsuitable for the discharge of the trust, or if without sufficient cause they
neglect to apply within a reasonable time for the administration of the estate, their right
to priority shall be lost, and the court shall commit the administration to some suitable
person who is a resident of the state, or to the attorney general or the attorney general's
designee, if the department of job and family services is seeking to recover medical
assistance from the deceased pursuant to section 5111.11 or 5111.111 of the Revised
Code. The person granted administration may be a creditor of the estate."
{¶18} Because appellants were not given notice as required by statute, the
appointment of the administrator was premature. Therefore, this court remands the
matter to the trial court for the fulfillment of the mandates of R.C. 2113.06 and 2113.07.
Delaware County, Case No. 11CAF090084 5
{¶19} For clarification, because appellants argued the trial court lacked
jurisdiction, we find that under Civ.R. 7(A) and 73(A), the filing of the application for
authority to administer the estate was not void because the commencement of the
action began with the December 30, 2010 filing and did not divest the trial court of
jurisdiction to determine the appointment of the administrator.
{¶20} The sole assignment of error is granted.
{¶21} The judgment of the Court of Common Pleas of Delaware County, Ohio,
Probate Court is hereby reversed, and the matter is remanded to said court for notice to
the surviving spouse and next of kin and for determination under R.C. 2113.06 and
2113.07.
By Farmer, J.
Gwin, P.J. and
Hoffman, J. concur.
s/ Sheila G. Farmer_____________
s/ W. Scott Gwin ____________
_s/ William B. Hoffman_________
JUDGES
SGF/sg 307
[Cite as In re Estate of Tullos, 2012-Ohio-1114.]
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF THE ESTATE OF: :
:
WILLIAM LAWRENCE TULLOS : JUDGMENT ENTRY
:
:
:
: CASE NO. 11CAF090084
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Delaware County, Ohio, Probate Division is
reversed, and the matter is remanded to said court for notice to the surviving spouse
and next of kin and for determination under R.C. 2113.06 and 2113.07. Costs to
appellee.
s/ Sheila G. Farmer_____________
s/ W. Scott Gwin ____________
_s/ William B. Hoffman_________
JUDGES