Who Can Serve as Executor or Administrator in an Ohio Wrongful Death Case

Once a family knows a wrongful death claim needs a court-appointed personal representative, the next question is a tender one: who should it be? Sometimes the answer is obvious. Sometimes it touches old family tensions at the worst possible time.

This chapter explains who Ohio law puts first in line, who cannot serve, how other relatives step aside or are notified, and what to think about when your family chooses. If you have not read it yet, start with Do You Need to Open an Estate?

Executor or administrator: what is the difference?

Both are "fiduciaries," people appointed by the probate court and answerable to it. The title depends on whether there is a will.

• An executor is the person named in your loved one's will. When the will is admitted to probate, the court issues letters to the named executor if that person is suitable, competent, accepts the appointment, and gives bond if bond is required (R.C. 2113.05).
• An administrator is appointed when there is no will. If there is a will but the named executor has died, declines, or cannot serve, the court appoints an "administrator with the will annexed" (R.C. 2113.05).

For the wrongful death claim, either one is the "personal representative" who brings the claim (R.C. 2125.02(A)).

When there is no will: who comes first

Ohio law sets out who has priority to be administrator when there is no will (R.C. 2113.06(A)):

1. The surviving spouse, if the spouse lives in Ohio.
2. One of the next of kin who lives in Ohio.

"Next of kin" generally means the closest relatives under Ohio's inheritance statute, which moves outward from children and their descendants to parents, then to brothers and sisters, and beyond (R.C. 2105.06). Priority is not a command. A person with priority can decline, and the court can appoint someone else.

If no one entitled to serve applies, if they are unsuitable, or if they "neglect to apply within a reasonable time," they lose their priority and the court may appoint "some suitable person" who lives in Ohio (R.C. 2113.06(C)). That provision matters in wrongful death cases, because waiting can put the two-year filing deadline at risk.

Keep in mind that priority to serve is a different question from who shares in a wrongful death recovery. Our guide chapter on who can bring a claim explains the beneficiaries of the claim itself.

Residency rules

An administrator, including an administrator with the will annexed, must be an Ohio resident and can be removed on proof that they no longer live in Ohio (R.C. 2109.21(A)). Montgomery County's checklist for an estate with no will says it plainly: "The applicant must be a resident of the State of Ohio."

The rule is more flexible for an executor named in a will. A nonresident named as executor can qualify if, among other options, they are related to the person who died by blood or marriage (R.C. 2109.21(B)(1)(a)).

If the family member who would naturally serve lives out of state and there is no will naming them, another relative who lives in Ohio may need to serve instead.

Waivers and notice to other relatives

When you apply, you must list the surviving spouse and all next of kin you know of, with their addresses (R.C. 2113.07). Anyone with equal or higher priority than you can sign a waiver giving up their right to serve. If they do not, they must receive notice so they can decide whether to take the job or renounce it (R.C. 2113.07).

The statewide forms are:

• Form 4.3, Waiver of Right to Administer, signed by relatives with equal or greater priority who agree to step aside.
• Form 4.4, Notice and Citation of Hearing on Appointment of Fiduciary, used when someone with priority has not waived. It tells them that if they want to be considered they must apply, and that if they know a reason the applicant is unsuitable, they should tell the court.

Notice of an application to appoint an administrator must be served at least seven days before the hearing (Civ.R. 73.11(A)). In Montgomery County, the court serves that notice when waivers are not filed (Mont. Co. P.C.R. 60.1(A)), and the court's checklist says the applicant prepares Form 4.4.

Minors who would have priority except for their age must also be served (R.C. 2113.07). Montgomery County's checklist adds that a minor cannot waive the right to administer, and explains how a custodian signs and how minors are served.

One person, usually not two

Families sometimes ask whether two siblings can serve together. Montgomery County's local rule says that unless a will or other controlling document names co-fiduciaries, the court will typically not appoint more than one "absent extraordinary circumstances" (Mont. Co. P.C.R. 78.1(C)). Plan on choosing one person.

What the job really involves

The personal representative in a wrongful death case is, in a sense, a trustee for the whole family. Ohio courts describe the beneficiaries as the real parties in interest and the personal representative as a nominal party. Bath Manor Special Care Ctr. v. Obasogie, 2021-Ohio-2227, ¶ 7 (9th Dist.). In practice that means the representative:

• Signs the probate papers and accepts the duties of a fiduciary (Form 4.0 includes the acceptance).
• Works with the family's lawyer, makes decisions about the claim, and keeps the family informed.
• Asks the probate court to approve any settlement and its division among the family, and reports how the money was paid out. See Approving a Wrongful Death Settlement.
• Keeps the estate's paperwork current with the court. See Bond, Notices and Fiduciary Duties.

Serving does not give the representative a larger share of the wrongful death recovery. The court divides that money among the beneficiaries. The court may approve reasonable compensation for the fiduciary's services on the claim, which Ohio's settlement application lists separately (Standard Probate Form 14.0).

The representative also cannot file the wrongful death lawsuit on the family's behalf without a lawyer when other family members share in the claim. In Obasogie, an administrator who filed on his own was found to have engaged in the unauthorized practice of law because his sister was also a beneficiary.

How to choose

There is no single right answer, but these questions help:

• Who is organized and reachable? The court sends notices and deadlines. The representative must keep a current address on file with the court or risk removal (Civ.R. 73.8(C)).
• Who can work with everyone? The representative must be fair to all of the beneficiaries, including relatives they may not be close to.
• Is there a conflict? If the person with priority may have played a part in the events that caused the death (for example, a driver in the same crash), or has interests that cut against other beneficiaries, talk with a lawyer before anyone files.
• Is there a parent who abandoned a child? When the person who died is a minor, a parent who abandoned the child is barred from benefiting from the wrongful death claim, and there is a court process for that finding (R.C. 2125.02(A) and (G)). That parent is a poor choice to serve, and the situation calls for a lawyer.

When to get a lawyer for this step

You can usually handle the appointment yourself when the family agrees and everyone with priority signs waivers. Get help if relatives disagree about who should serve, if the person with priority lives out of state, if a child's interests are involved in a contested way, or if the two-year deadline is getting close. When you are ready, Opening an Estate walks through the forms.

Common questions