[Cite as In re Estate of Tullos, 2012-Ohio-1114.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT




IN THE MATTER OF THE ESTATE OF:                     :   JUDGES:
                                                    :   Hon. W. Scott Gwin, P.J.
WILLIAM LAWRENCE TULLOS                             :   Hon. William B. Hoffman, J.
                                                    :   Hon. Sheila G. Farmer, J.
                                                    :
                                                    :   Case No. 11CAF090084
                                                    :
                                                    :   OPINION



CHARACTER OF PROCEEDING:                                Appeal from the Court of Common
                                                        Pleas Court, Probate Divsion, Case
                                                        No. 210772-E


JUDGMENT:                                               Reversed and Remanded




DATE OF JUDGMENT:                                       March 16, 2012




APPEARANCES:

For Appellants                                          For Estate

ARNOLD L. JACK                                          AARON R. FALVO
572 East Rich Street                                    261 West Johnstown Road
Columbus, OH 43215                                      Columbus, OH 43230

Administrator                                           For American Postal Workers' Union

J. MICHAEL EVANS                                        JAY E. MICHAEL
261 West Johnstown Road                                 729 South Front Street
Columbus, OH 43230                                      Columbus, OH 43206
Delaware County, Case No. 11CAF090084                                                   2

Farmer, J.

       {¶1}   On July 10, 2010, William Lawrence Tullos died. On December 30, 2010,

appellee, J. Michael Evans, filed an application for authority to administer the estate

pursuant to a creditor's claim (American Postal Workers' Union). The surviving spouse

and next of kin were not listed or notified. On January 3, 2011, the trial court granted

the application.

       {¶2}   On March 3, 2011, Mr. Tullos's wife and son, Shirley and William Tullos,

appellants herein, filed a motion to set aside the appointment of appellee as

administrator.     By judgment entry filed August 24, 2011, the trial court denied the

motion.

       {¶3}   Appellants filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                            I

       {¶4}   "THE PROBATE COURT ERRED AS A MATTER OF LAW BY

OVERRULING APPELLANTS' MOTION TO SET ASIDE THE APPOINTMENT OF THE

ADMINISTRATOR WHEN APPELLANTS HAD NO NOTICE AND NO OPPORTUNITY

TO BE HEARD BEFORE THE COURT APPOINTED THE ADMINISTRATOR."

                                            I

       {¶5}   Appellants claim the trial court erred in denying their request to set aside

the appointment of the administrator. Specifically, appellants claim appellee's failure to

list the "names of the surviving spouse and all the next of kin of the deceased" pursuant

to R.C. 2113.07 invalidated the trial court's appointment of the administrator. We agree.
Delaware County, Case No. 11CAF090084                                                    3


      {¶6}   Appellee filed an application for authority to administer the estate under

R.C. 2109.02 and 2109.07, but failed to list the surviving spouse and next of kin.

Contemporaneously with this filing was a separate form (Form 1.0) listing the "surviving

spouse and next of kin."

      {¶7}   Without notice to the surviving spouse and next of kin, and without a

waiver of notice, the trial court proceeded to appoint appellee as administrator on

January 3, 2011. Appellants filed their motion to set aside the appointment on March 3,

2011, claiming the appointment was void and the matter should be dismissed.

      {¶8}   It is undisputed that R.C. 2113.07 governs the matter in this case and it

requires either waiver or notice by the probate court for the "purpose of ascertaining

whether they desire to take or renounce administration":

      {¶9}   "Before being appointed executor or administrator, every person shall

make and file an application that shall contain the names of the surviving spouse and all

the next of kin of the deceased known to the applicant, their addresses of usual

residence if known, a statement in general terms of what the estate consists and its

probable value, and a statement of any indebtedness the deceased had against the

applicant.

      {¶10} "The application may be accompanied by a waiver signed by the persons

who have priority to administer the estate, and, in the absence of a waiver, those

persons shall be served notice for the purpose of ascertaining whether they desire to

take or renounce administration. Minors who would have been entitled to priority to

administer the estate except for their minority also shall be served notice pursuant to the

Rules of Civil Procedure.
Delaware County, Case No. 11CAF090084                                                      4


       {¶11} "Letters of administration shall not be issued upon the estate of an

intestate until the person to be appointed has made and filed a statement indicating that

the person has no knowledge of a will of the intestate."

       {¶12} R.C. 2113.06 provides the following:

       {¶13} "(A) Administration of the estate of an intestate shall be granted to persons

mentioned in this division, in the following order:

       {¶14} "(1) To the surviving spouse of the deceased, if resident of the state;

       {¶15} "(2) To one of the next of kin of the deceased, resident of the state.

       {¶16} "(B) If the persons entitled to administer the estate under division (A) of

this section fail to take or renounce administration voluntarily, the matter shall be set for

hearing and notice given to the persons.

       {¶17} "(C) If there are no persons entitled to administration, if they are for any

reason unsuitable for the discharge of the trust, or if without sufficient cause they

neglect to apply within a reasonable time for the administration of the estate, their right

to priority shall be lost, and the court shall commit the administration to some suitable

person who is a resident of the state, or to the attorney general or the attorney general's

designee, if the department of job and family services is seeking to recover medical

assistance from the deceased pursuant to section 5111.11 or 5111.111 of the Revised

Code. The person granted administration may be a creditor of the estate."

       {¶18} Because appellants were not given notice as required by statute, the

appointment of the administrator was premature. Therefore, this court remands the

matter to the trial court for the fulfillment of the mandates of R.C. 2113.06 and 2113.07.
Delaware County, Case No. 11CAF090084                                                  5


      {¶19} For clarification, because appellants argued the trial court lacked

jurisdiction, we find that under Civ.R. 7(A) and 73(A), the filing of the application for

authority to administer the estate was not void because the commencement of the

action began with the December 30, 2010 filing and did not divest the trial court of

jurisdiction to determine the appointment of the administrator.

      {¶20} The sole assignment of error is granted.

      {¶21} The judgment of the Court of Common Pleas of Delaware County, Ohio,

Probate Court is hereby reversed, and the matter is remanded to said court for notice to

the surviving spouse and next of kin and for determination under R.C. 2113.06 and

2113.07.

By Farmer, J.

Gwin, P.J. and

Hoffman, J. concur.




                                             s/ Sheila G. Farmer_____________



                                             s/ W. Scott Gwin     ____________



                                             _s/ William B. Hoffman_________

                                                            JUDGES


SGF/sg 307
[Cite as In re Estate of Tullos, 2012-Ohio-1114.]


                  IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT




IN THE MATTER OF THE ESTATE OF:                     :
                                                    :
WILLIAM LAWRENCE TULLOS                             :        JUDGMENT ENTRY
                                                    :
                                                    :
                                                    :
                                                    :        CASE NO. 11CAF090084




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Delaware County, Ohio, Probate Division is

reversed, and the matter is remanded to said court for notice to the surviving spouse

and next of kin and for determination under R.C. 2113.06 and 2113.07.                 Costs to

appellee.




                                                    s/ Sheila G. Farmer_____________



                                                    s/ W. Scott Gwin   ____________



                                                    _s/ William B. Hoffman_________

                                                                 JUDGES
