Background
Mary Frances Kendrick passed away intestate on May 8, 2019. Her daughter, Mary H. Kendrick, filed a statement of intention in the probate court seeking to transfer the decedent’s real property. Kendrick filed a next-of-kin form listing only herself and her brother Gregory Carter as the decedent’s children. However, the decedent’s 1992 amended final divorce decree — which Kendrick herself filed with the probate court — identified a third child: Yahya Hashim, the son of the decedent and her ex-husband Herbert Kendrick.
The probate court signed certificates of transfer for two parcels (the Roxbury Property and the Midway Property) to Kendrick and Carter in equal shares. Carter later quit-claimed his share of the Roxbury Property to Kendrick, who sold it to a third party. Hashim, upon learning of the transfers, filed a Civ.R. 60(B) motion seeking his one-third share of the properties as an omitted heir under the statutes of descent and distribution. The probate court denied the motion, and Hashim appealed.
The Court’s Holding
The Second District reversed and remanded. The court found that Hashim satisfied all three prongs of the Civ.R. 60(B) test: he had a meritorious defense or claim (as a child of the decedent omitted from the next-of-kin form, he was entitled to a one-third share under Ohio’s intestacy statutes); he was entitled to relief under Civ.R. 60(B)(5) given the fraud or misrepresentation in the next-of-kin filing; and his motion was filed within a reasonable time.
The court emphasized that the decedent’s own divorce decree — filed with the probate court by Kendrick — identified Hashim as a child, making Kendrick’s omission of him from the next-of-kin form particularly troubling. The court also noted an email exchange in which Kendrick’s attorney acknowledged Hashim’s status as an heir, further undermining any claim that his omission was inadvertent.
Key Takeaways
- An heir omitted from a next-of-kin form in a probate estate can seek relief through Civ.R. 60(B), and courts will carefully scrutinize whether the omission was inadvertent or intentional.
- Documents already in the probate court’s file — such as divorce decrees identifying additional children — can establish the meritorious nature of an omitted heir’s claim.
- The Civ.R. 60(B)(5) catch-all provision provides a basis for relief when a certificate of transfer is obtained through incomplete or misleading filings.
Why It Matters
This decision serves as a strong warning to fiduciaries and family members involved in probate estate administration: omitting known heirs from next-of-kin filings can result in reversal of property transfers, even after the property has been sold to third parties. For Ohio probate practitioners, the opinion underscores the importance of conducting thorough due diligence on the identity of all potential heirs before filing transfer applications. It also demonstrates that Civ.R. 60(B) remains a viable avenue for omitted heirs to challenge certificates of transfer, even after significant time has passed.