The Interplay Between Testate and Intestate Succession and Ohio Foreclosures

Did you know that in Ohio, what happens to a deceased title holder’s real property could depend on whether they left a valid will or not? Depending upon how title is held, laws of testate and intestate succession can come into play when foreclosing a decedent’s real property.

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In Ohio, if title is not held in survivorship or via transfer on death, the manner in which the title holder dies is determinative of the next steps in foreclosure, including joinder of necessary party defendants. Accordingly, when foreclosing a decedent’s real property your attorney must determine the manner in which title was held. If held in survivorship or via a transfer on death deed, joinder of the surviving tenant or transfer on death beneficiaries is required.    

On the other hand, if a decedent did not hold title via survivorship or transfer on death, the determination of necessary parties turns on the language of the will or the laws of intestate succession.  If the decedent died with a valid will, their estate is testate and joinder of the identified real estate beneficiaries is required. If the decedent died intestate, they did not leave a valid will and unknown heirs, or known heirs, per the laws of intestate succession, are necessary party defendants.

Operation of Law

Fortunately, in Ohio, and as set forth above, title passes by operation of law to the identified, known, or unknown heirs of the deceased title holder. Accordingly, an Estate need not be opened for a deceased title holder in order for a mortgage to proceed a foreclosure. Further, a mortgagee need not open an Estate to make a claim. Instead, the mortgagee simply forecloses the collateral and joins the known or unknown heirs of the deceased title holder.  

Moreover, a pending Estate in Probate Court is not an impediment to foreclosure. The only probate impediment to a foreclosure in Ohio is a land sale proceeding. If the Estate opens a separate civil action to sell the property in Probate Court (i.e., a Land Sale), this is a jurisdictional impediment to a foreclosure in Common Pleas Court. Accordingly, the mortgagee would need to appear in the Land Sale, assert its interest, and monitor to public or private sale. Again, a mortgagee cannot foreclose if a land sale files in Probate Court.  

Best Practice

It's important to note that the specific details of Ohio's testate and intestate laws can be complex and may vary based on individual circumstances. Consulting with an attorney or seeking legal advice is recommended to ensure a proper understanding and application of these laws.

Please note that Matt Curry is an MDK Alumni member.