Will Ohio recognize a will executed in another state even without the original copy?
Full Question:
Answer:
Typically, a resident of a particular state is determined by where they person claimed his domicile. A domicile is defined as the place where a person has his permanent principal home to which, whenever he is absent, he returns or intends to return. Domicile is important because it is used in determining in what state a probate of a dead person's estate is filed, what state can assess income or inheritance taxes, where a party can begin divorce proceedings, or whether there is "diversity of citizenship" between two parties which may give federal courts jurisdiction over a lawsuit. Where a person has several "residences" evidence may need to be examined to determine which is the state of domicile. A person may have only one domicile at a single point in time.
The Ohio statutes allow for a resident's will executed in another state to be probated under certain circumstances.
2129.05 Foreign wills.
Authenticated copies of wills, executed and proved according to the laws of any state or territory of the United States, relative to property in this state, may be admitted to record in the probate court of a county where a part of such property is situated. Such authenticated copies, so recorded, shall be as valid as wills made in this state.
When such a will, or authenticated copy, is admitted to record, a copy thereof, with the copy of the order to record it annexed thereto, certified by the probate judge under the seal of his court, may be filed and recorded in the office of the probate judge of any other county where a part of such property is situated, and it shall be as effectual as the authenticated copy of such will would be if approved and admitted to record by the court.
Effective Date: 10-01-1953
2129.07 Proceedings to admit foreign will to record.
(A) An authenticated copy of a will executed, proved, and allowed in a country other than the United States and territories of the United States, and the probate of that will shall be produced by the executor, or by a person interested in the will, to the probate court of the county in which there is any estate upon which the will may operate. The court then shall continue the application to admit it to probate for two months. Notice of the filing of the application shall be given to all persons interested in the will, in a public newspaper published in or in general circulation in the county in which the application is made, at least three weeks consecutively. The first publication shall be at least forty days before the time set for the final hearing of the application. If, on the final hearing, it appears to the court that the instrument ought to be allowed in this state, it shall order the copy to be filed and recorded. The will, and the probate and record of it, then shall have the same effect as if the will originally had been proved and allowed in that court.
(B) This section does not give effect to the will of an alien different from that which it would have had if originally proved and allowed in this state.
(C) When the copy of the will has been filed and recorded, and when no ancillary administration proceedings have been had or are being had in this state, sections 2106.01 to 2106.08 of the Revised Code, relating to the election of a surviving spouse, shall apply the same as in the case of resident decedents, except that an election under section 2106.01 of the Revised Code shall not be made subject to division (E) of that section, but instead shall be made at any time after the death of the decedent but not later than six months after the recording of the copy of the will.
Effective Date: 05-31-1990
In Ohio, a Last Will & Testament is not "recorded," but it may be placed "on deposit" with the Probate Court for safekeeping. There is no requirement that a will be placed on deposit, and the practice varies from one attorney to another, as well as from case to case depending on a client's wishes.
If you are unable to locate your fatther's original will by contacting the county Probate Court where she once resided, you might also check adjacent counties.
If this fails, follow the trail of the attorney who prepared the will; you might be able to find out who took over his or her practice or files, and the original will may be with that person.
Also, if an original will cannot be located, maybe a copy or notes regarding the provisions of the will can be located with a family member or close friend.
When all else fails, Ohio has the following procedure for admitting a lost will, which requires a hearing and that the proponent of the lost will establish certain criteria with evidence and/or testimony.
2107.26 Lost, spoliated, or destroyed wills may be admitted to probate.
When an original will is lost, spoliated, or destroyed before or after the death of a testator, the probate court shall admit the lost, spoliated, or destroyed will to probate if both of the following apply:
(A) The proponent of the will establishes by clear and convincing evidence both of the following:
(1) The will was executed with the formalities required at the time of execution by the jurisdiction in which it was executed.
(2) The contents of the will.
(B) No person opposing the admission of the will to probate establishes by a preponderance of the evidence that the testator had revoked the will.
Effective Date: 10-29-1999
