Family Member NOT Appointed Administrator

The appointed Administrator is the person you nominate in your Last Will and Testament to be in charge of your estate.  Assuming the person is over the age of 21 and does not have a felony conviction, the Court will follow your wishes and they will be appointed to handle your affairs.  However, if there is no Will, then persons may apply to the court to be in charge in the following order: surviving spouse, adult children, parents, siblings, grandchildren, or any other kin entitled to a distribution of the estate.

Recently, in an Ohio probate matter, a niece contested the appointment of a non-relative identified in a power of attorney as the Administrator.  The niece maintained she was a relative and should be appointed.  The Court concluded otherwise and the decision was upheld on appeal.  The Ohio Appeals Court noted that “while a “next of kin” is preferable over a stranger for appointment as administrator, “next of kin” is defined by statute as only those persons who are entitled to some portion of the estate.” Because the niece was omitted she was not a “next of kin” to decedent and had equal priority as the agent. The Nevada statute specifically indicates that the priority relates to next of kin who are entitled to a distribution. As a result, the niece would have no priority over a non-family member. More importantly, the Court upheld the decision that the magistrate was reasonable to conclude that he could not handle administering a sizable estate based on his inadequate accounting during the time he handled decedent’s affairs. Interestingly, the Court did not feel comfortable appointing the person identified in the power of attorney because there were numerous discrepancies regarding their accounting of the assets during the time they assisted the Decedent with his financial affairs.  As a result, the Court ultimately appointed a complete stranger as an independent administrator.  In Re the Estate of Dolores Amoroso, 2015-Ohio-3352.

This case illustrates the importance of executing a Will in order to ensure you have provided for the nomination of someone to handle your affairs upon your demise.  Interestingly, in the Amoroso matter, the Decedent had executed a Will but only nominated her spouse to serve.  Unfortunately, he had predeceased her and an alternate was not identified.  The assistance of an experienced probate and estate planning attorney can make all the difference.  Don’t hesitate to contact us at (702) 798-4955 for more valuable information.

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