IN RE: ESTATE OF TYLER.* (1999)

This matter is presently before the court on the question of who is to be appointed administrator with will annexed of the estate of Myrtle Tyler.

 Myrtle Tyler made her will in December, 1986.   She died January 28, 1999.   Her will was admitted to probate in this court on February 19, 1999.   In Article VII of her will she appointed R. David Picken as her executor.   Picken, upon being notified of Tyler's death and his appointment in her will, declined to accept the appointment.

Jean Joy, Tyler's daughter, applied to be the administrator with will annexed of her mother's estate.   Tyler's beneficiaries in her will are Jean Joy, daughter;  Jack Murphy, son;  Robyn Lyn Hutchens, granddaughter;  Garry Denny, grandson;  James E. Herman and Mary Anne Herman;  and BancOhio National Bank (now known as National City Bank) as trustee.   Jack Murphy, Tyler's son, is deceased with no surviving spouse or children.   Tyler's only surviving heir at law is her daughter, Jean Joy.   All, except National City Bank, agree to the appointment of Jean Joy as fiduciary of this estate.

National City Bank's main position is that it could do a much better job as administrator than Joy.   The court does not doubt that the bank has many areas of expertise, has handled many estates, would secure counsel to handle legal questions, and would file appropriate taxes.   The appointment of a fiduciary is not necessarily a question of expertise.   Most testators appoint a loved one, a relative, or a trusted friend as a fiduciary.   The testator assumes the fiduciary will hire the experts necessary, such as attorneys and accountants.   The court cannot assume Joy will not do this.

 National City Bank has not proved to this court that Joy is unsuitable or incompetent to be an administrator.   A lack of expertise in a specialized area is not the equivalent of unsuitability.   R.C. 2113.05 commands that when a named executor declines, “letters of administration with the will annexed shall be granted to a suitable person or persons named as devisees or legatees in the will, who would have been entitled to administer the estate if the decedent had died intestate.”   Both Joy and National City Bank are named as devisees.

However, Joy would be the person entitled to administer the estate if Tyler had died intestate.   R.C. 2113.06(B).   That section provides that if there is no surviving spouse, the person entitled to administer is “one of the next of kin of the decedent, resident of the state.”   Joy is both next of kin and a resident of this state.

Her priority is lost only if she is “unsuitable for the discharge of the trust, or if without sufficient cause [she] neglect[s] to apply within a reasonable time for the  administration of the estate.”   R.C. 2113.06.   Tyler died on January 28, 1999.   Joy applied to be appointed administrator with will annexed on February 16, 1999.   The court finds this to be a very timely application.   The court finds Joy to be suitable.

Thus, the law of Ohio compels this court to appoint Joy. However, as a beneficiary trustee, the bank will be in a unique position to observe the actions of Joy and bring to the court's attention any actions it believes to be improper.   The court cannot assume future improper or unsuitable conduct on the part of Joy in administering her mother's estate.

WHEREFORE, IT IS ORDERED that Jean Joy be appointed administrator with will annexed of the estate of Myrtle Tyler and that letters of authority shall be issued to her upon filing of a suitable bond.

So ordered.

 NANCY DRAKE HAMMOND, Judge.