An Ohio Executor and Estate Real Property: R.C. 2113.311, the Application, and the Hundred-Dollar Line

Every state in this series tells an executor something about the building. Texas imposes a duty to keep it in good repair. Oklahoma demands good tenantable repair. Alabama gates repairs behind prior court approval. Ohio does something different again: it does not start from a duty at all. The operative section on estate real property is a grant of authority the representative has to ask for, and the asking is the first thing that happens to a vacant house in an Ohio estate.

The Authority Has To Be Applied For

R.C. 2113.311 is headed Management of real property by executor or administrator. Division (A) sets the trigger: "If, within a reasonable time after the appointment of the executor or administrator, no one in authority has taken over the management and rental of any real property of which the decedent died seized, the executor or administrator, or an heir or devisee may, unless the will otherwise provides, make application to the probate court for an order authorizing the executor or administrator to assume those duties."

Three things in that sentence shape the whole section. The condition is that nobody in authority has already taken the property over. The applicant can be the representative or an heir or devisee, so an heir watching a house decline can start the process themselves. And the will can displace it: unless the will otherwise provides.

The application has to say what it is about. Division (A) requires a brief statement of the facts on which it is based and any other pertinent information the court may require, a description or identification of the real property and the interest the decedent owned at death, and the names and addresses, if known to the applicant, of the persons to whom the real property passed by descent or devise.

• Division (B) — notice of the hearing goes to those heirs or devisees, unless for good cause the court dispenses with it, and also to the executor or administrator where the representative is not the applicant
• Division (C) — the court grants it if it finds the statements in the application are true and that it would be for the best interest of those heirs or devisees
• Division (D) — the court may require bond, new or additional, conditioned on faithful and honest discharge of the duties devolving from the section

The standard in (C) is worth noting. The test is not the convenience of the administration; it is the best interest of the heirs or devisees, the people to whom the property passed.

What the Order Allows, and the Hundred-Dollar Line

Division (E) enumerates the authority the order confers. The representative may collect rents, and from the rents collected pay all taxes and assessments due on the real property and all usual operating expenses in connection with its management; make repairs when necessary to preserve the real property from waste; and insure buildings against loss by fire or other casualty and against public liability.

The repair power carries a condition inside it. Division (E)(2)(b) reads: make repairs when necessary to preserve the real property from waste, "provided that an order of the court shall first be obtained if the cost of repairs exceeds one hundred dollars."

One hundred dollars. That figure is the current language, not a historical artefact of some superseded version: the section as published by the Legislative Service Commission is effective January 13, 2012 under Senate Bill 124 of the 129th General Assembly, and it is the only available version of the section. A board-up, a lock change, a furnace repair or a tarp all clear one hundred dollars comfortably, which means the practical reading is that each one needs its own prior order.

The remaining powers in (E) follow the same pattern of court supervision over money.

• (E)(3) — advance money for repairs, taxes, insurance and usual operating expenses only "upon an order first obtained from the court", and the advance "shall be a charge on the real property"
• (E)(4) — rent the property month to month, or, upon an order first obtained from the court, for a period not to exceed one year
• (E)(5) — prosecute actions for forcible entry and detainer of the real property

The Standard Is Waste, Not Repair

Read the repair power for the words it uses. The authority is to make repairs "when necessary to preserve the real property from waste" — a preservation floor, aimed at stopping loss of value rather than at restoring condition. That is a narrower target than the Texas duty to keep buildings in good repair and considerably narrower than the Oklahoma standard of good tenantable repair, which points at a building fit to occupy.

For a field operation the practical difference is scope. Against a waste standard the defensible work is the work that stops deterioration and documents that it stopped: securing openings, keeping water out and out of the pipes, cutting growth back off the structure, and recording condition with dates. Work beyond that invites the question of whose interest it served, and division (C) has already told the court whose interest to weigh.

Accounting, and When It Ends

Division (F) requires the representative, at intervals not to exceed twelve months, to pay over to the heirs or devisees, if known, their share of the net rents, and to account for all money received and paid out under authority of the section in the regular accounts of the administration of the estate "but in a separate schedule." An unclaimed share may be disposed of in the same manner as unclaimed money under R.C. 2113.64.

That separate schedule is the reason documentation matters on these properties. The money spent on the building is reported apart from the rest of the administration, which makes it the line an heir reads first.

Division (G) ends the authority on transfer of the real property to the heirs or devisees under R.C. 2113.61, on a sale, on the representative's own application, or, for good cause shown, on the application of an heir or devisee. Division (H) allows the court on application to compensate the representative for extraordinary services and to allow reasonable attorney fees paid in connection with the management and rental — both charged against the rents, "and if the rents are insufficient, shall be a charge against the real property."

A Vacant House Breaks the Funding Model

The section is built around a property that produces rent. Division (E)(2) funds taxes, operating expenses, preservation repairs and insurance out of "the rents collected." An empty house collects nothing, so on the property most likely to need the work there is no internal money to do it with, and the route left is (E)(3) — an advance, on a prior order, that becomes a charge on the real property itself.

That is the structural feature of Ohio worth planning around. The state that most tightly supervises preservation spending is also the state whose funding mechanism assumes a tenant. Where the house is also attracting municipal attention, the registration obligations run on their own clock regardless of where the probate file stands — see vacant property registration ordinances in Ohio and the Columbus registration requirement.

The Six-Month Clock

R.C. 2113.25 sets the pace of the administration around all of this: "The executor or administrator of an estate shall collect the assets and complete the administration of that estate within six months after the date of appointment unless an extension of the time to file a final and distributive account is authorized under division (B) of section 2109.301 of the Revised Code." For good cause shown, the court may grant an extension of the time to file the inventory and accounts.

Six months is short for a house that has to be cleared, secured, marketed and sold. It is also the window in which the (A) application, any (E)(2)(b) repair orders and the (F) schedule all have to happen, which argues for applying early rather than after the first winter.

Ohio's Other Route: the Receiver

Where an estate property has deteriorated into a public nuisance, Ohio has a second mechanism that does not depend on the probate file at all. R.C. 3767.41 puts a court-appointed receiver in possession of the building and makes approved costs a first lien superior to taxes, subject to court approval and recording within sixty days. That is a different office with different powers, and it is covered separately in a receiver's property duties in Ohio.

The guardianship side of Chapter 2111 is different again, and applies while the owner is living — see a guardian's duty to maintain the ward's property in Ohio.

Six States, Six Answers

For the neighbouring provisions see Texas, Oklahoma, Alabama, Louisiana and Arkansas, or the whole set at estates, probate and fiduciary.