As Introduced

128th General Assembly
Regular Session
2009-2010
S. B. No. 106


Senators Buehrer, Kearney 

Cosponsors: Senators Miller, R., Schuler, Seitz, Turner 

A BILL
To amend sections 2101.16, 2107.76, 2111.05, 2111.18, 1
2305.19, and 5815.31 of the Revised Code to 2
exclude from the application of the savings 3
statute certain estate and trust proceedings that 4
have limitation periods, to raise the threshold 5
amount for the termination or avoidance of 6
guardianships of small estates of wards, to raise 7
the threshold amount for the avoidance of 8
guardianship upon the settlement of claims of 9
minors or adult incompetents, and to clarify that 10
termination of marriage revokes any trust 11
provision conferring a beneficial interest on the 12
former spouse.13


BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

       Section 1. That sections 2101.16, 2107.76, 2111.05, 2111.18, 14
2305.19, and 5815.31 of the Revised Code be amended to read as 15
follows:16

       Sec. 2101.16.  (A) Except as provided in section 2101.164 of 17
the Revised Code, the fees enumerated in this division shall be 18
charged and collected, if possible, by the probate judge and shall 19
be in full for all services rendered in the respective20
proceedings:21

(1) Account, in addition to advertising charges 22
$ 12.00 23
Waivers and proof of notice of hearing on account, per page, minimum one dollar 24
$ 1.00 25
(2) Account of distribution, in addition to advertising charges 26
$ 7.00 27
(3) Adoption of child, petition for 28
$ 50.00 29
(4) Alter or cancel contract for sale or purchase of real estate, petition to 30
$ 20.00 31
(5) Application and order not otherwise provided for in this section or by rule adopted pursuant to division (E) of this section 32
$ 5.00 33
(6) Appropriation suit, per day, hearing in 34
$ 20.00 35
(7) Birth, application for registration of 36
$ 7.00 37
(8) Birth record, application to correct 38
$ 5.00 39
(9) Bond, application for new or additional 40
$ 5.00 41
(10) Bond, application for release of surety or reduction of 42
$ 5.00 43
(11) Bond, receipt for securities deposited in lieu of 44
$ 5.00 45
(12) Certified copy of journal entry, record, or proceeding, per page, minimum fee one dollar 46
$ 1.00 47
(13) Citation and issuing citation, application for 48
$ 5.00 49
(14) Change of name, petition for 50
$ 20.00 51
(15) Claim, application of administrator or executor for allowance of administrator's or executor's own 52
$ 10.00 53
(16) Claim, application to compromise or settle 54
$ 10.00 55
(17) Claim, authority to present 56
$ 10.00 57
(18) Commissioner, appointment of 58
$ 5.00 59
(19) Compensation for extraordinary services and attorney's fees for fiduciary, application for 60
$ 5.00 61
(20) Competency, application to procure adjudication of 62
$ 20.00 63
(21) Complete contract, application to 64
$ 10.00 65
(22) Concealment of assets, citation for 66
$ 10.00 67
(23) Construction of will, petition for 68
$ 20.00 69
(24) Continue decedent's business, application to 70
$ 10.00 71
Monthly reports of operation 72
$ 5.00 73
(25) Declaratory judgment, petition for 74
$ 20.00 75
(26) Deposit of will 76
$ 5.00 77
(27) Designation of heir 78
$ 20.00 79
(28) Distribution in kind, application, assent, and order for 80
$ 5.00 81
(29) Distribution under section 2109.36 of the Revised Code, application for an order of 82
$ 7.00 83
(30) Docketing and indexing proceedings, including the filing and noting of all necessary documents, maximum fee, fifteen dollars 84
$ 15.00 85
(31) Exceptions to any proceeding named in this section, contest of appointment or 86
$ 10.00 87
(32) Election of surviving partner to purchase assets of partnership, proceedings relating to 88
$ 10.00 89
(33) Election of surviving spouse under will 90
$ 5.00 91
(34) Fiduciary, including an assignee or trustee of an insolvent debtor or any guardian or conservator accountable to the probate court, appointment of 92
$ 35.00 93
(35) Foreign will, application to record 94
$ 10.00 95
Record of foreign will, additional, per page 96
$ 1.00 97
(36) Forms when supplied by the probate court, not to exceed 98
$ 10.00 99
(37) Heirship, petition to determine 100
$ 20.00 101
(38) Injunction proceedings 102
$ 20.00 103
(39) Improve real estate, petition to 104
$ 20.00 105
(40) Inventory with appraisement 106
$ 10.00 107
(41) Inventory without appraisement 108
$ 7.00 109
(42) Investment or expenditure of funds, application for 110
$ 10.00 111
(43) Invest in real estate, application to 112
$ 10.00 113
(44) Lease for oil, gas, coal, or other mineral, petition to 114
$ 20.00 115
(45) Lease or lease and improve real estate, petition to 116
$ 20.00 117
(46) Marriage license 118
$ 10.00 119
Certified abstract of each marriage 120
$ 2.00 121
(47) Minor or mentally ill incompetent person, etc., disposal of estate under ten twenty-five thousand dollars of 122
$ 10.00 123
(48) Mortgage or mortgage and repair or improve real estate, petition to 124
$ 20.00 125
(49) Newly discovered assets, report of 126
$ 7.00 127
(50) Nonresident executor or administrator to bar creditors' claims, proceedings by 128
$ 20.00 129
(51) Power of attorney or revocation of power, bonding company 130
$ 10.00 131
(52) Presumption of death, petition to establish 132
$ 20.00 133
(53) Probating will 134
$ 15.00 135
Proof of notice to beneficiaries 136
$ 5.00 137
(54) Purchase personal property, application of surviving spouse to 138
$ 10.00 139
(55) Purchase real estate at appraised value, petition of surviving spouse to 140
$ 20.00 141
(56) Receipts in addition to advertising charges, application and order to record 142
$ 5.00 143
Record of those receipts, additional, per page 144
$ 1.00 145
(57) Record in excess of fifteen hundred words in any proceeding in the probate court, per page 146
$ 1.00 147
(58) Release of estate by mortgagee or other lienholder 148
$ 5.00 149
(59) Relieving an estate from administration under section 2113.03 of the Revised Code or granting an order for a summary release from administration under section 2113.031 of the Revised Code 150
$ 60.00 151
(60) Removal of fiduciary, application for 152
$ 10.00 153
(61) Requalification of executor or administrator 154
$ 10.00 155
(62) Resignation of fiduciary 156
$ 5.00 157
(63) Sale bill, public sale of personal property 158
$ 10.00 159
(64) Sale of personal property and report, application for 160
$ 10.00 161
(65) Sale of real estate, petition for 162
$ 25.00 163
(66) Terminate guardianship, petition to 164
$ 10.00 165
(67) Transfer of real estate, application, entry, and certificate for 166
$ 7.00 167
(68) Unclaimed money, application to invest 168
$ 7.00 169
(69) Vacate approval of account or order of distribution, motion to 170
$ 10.00 171
(70) Writ of execution 172
$ 5.00 173
(71) Writ of possession 174
$ 5.00 175
(72) Wrongful death, application and settlement of claim for 176
$ 20.00 177
(73) Year's allowance, petition to review 178
$ 7.00 179
(74) Guardian's report, filing and review of 180
$ 5.00 181

       (B)(1) In relation to an application for the appointment of a182
guardian or the review of a report of a guardian under section183
2111.49 of the Revised Code, the probate court, pursuant to court184
order or in accordance with a court rule, may direct that the185
applicant or the estate pay any or all of the expenses of an186
investigation conducted pursuant to section 2111.041 or division187
(A)(2) of section 2111.49 of the Revised Code. If the188
investigation is conducted by a public employee or investigator189
who is paid by the county, the fees for the investigation shall be 190
paid into the county treasury. If the court finds that an alleged 191
incompetent or a ward is indigent, the court may waive the costs, 192
fees, and expenses of an investigation.193

       (2) In relation to the appointment or functioning of a 194
guardian for a minor or the guardianship of a minor, the probate 195
court may direct that the applicant or the estate pay any or all 196
of the expenses of an investigation conducted pursuant to section 197
2111.042 of the Revised Code. If the investigation is conducted by 198
a public employee or investigator who is paid by the county, the199
fees for the investigation shall be paid into the county treasury. 200
If the court finds that the guardian or applicant is indigent, the 201
court may waive the costs, fees, and expenses of an investigation.202

       (C) Thirty dollars of the thirty-five-dollar fee collected203
pursuant to division (A)(34) of this section and twenty dollars of 204
the sixty-dollar fee collected pursuant to division (A)(59) of 205
this section shall be deposited by the county treasurer in the 206
indigent guardianship fund created pursuant to section 2111.51 of 207
the Revised Code.208

       (D) The fees of witnesses, jurors, sheriffs, coroners, and209
constables for services rendered in the probate court or by order210
of the probate judge shall be the same as provided for like211
services in the court of common pleas.212

       (E) The probate court, by rule, may require an advance213
deposit for costs, not to exceed one hundred twenty-five dollars,214
at the time application is made for an appointment as executor or215
administrator or at the time a will is presented for probate.216

       (F) The probate court, by rule, shall establish a reasonable 217
fee, not to exceed fifty dollars, for the filing of a petition for 218
the release of information regarding an adopted person's name by 219
birth and the identity of the adopted person's biological parents 220
and biological siblings pursuant to section 3107.41 of the Revised 221
Code, all proceedings relative to the petition, the entry of an 222
order relative to the petition, and all services required to be 223
performed in connection with the petition. The probate court may 224
use a reasonable portion of a fee charged under authority of this 225
division to reimburse any agency, as defined in section 3107.39 of 226
the Revised Code, for any services it renders in performing a task 227
described in section 3107.41 of the Revised Code relative to or in 228
connection with the petition for which the fee was charged.229

       (G)(1) Thirty dollars of the fifty-dollar fee collected 230
pursuant to division (A)(3) of this section shall be deposited 231
into the "putative father registry fund," which is hereby created 232
in the state treasury. The department of job and family services 233
shall use the money in the fund to fund the department's costs of234
performing its duties related to the putative father registry 235
established under section 3107.062 of the Revised Code.236

       (2) If the department determines that money in the putative 237
father registry fund is more than is needed for its duties related 238
to the putative father registry, the department may use the 239
surplus moneys in the fund as permitted in division (C) of section 240
2151.3529, division (B) of section 2151.3530, or section 5103.155 241
of the Revised Code.242

       Sec. 2107.76. (A) No person who has received or waived the 243
right to receive the notice of the admission of a will to probate244
required by section 2107.19 of the Revised Code may commence an245
action permitted by section 2107.71 of the Revised Code to contest246
the validity of the will more than three months after the filing247
of the certificate described in division (A)(3) of section 2107.19248
of the Revised Code. No other person may commence an action 249
permitted by section 2107.71 of the Revised Code to contest the 250
validity of the will more than three months after the initial 251
filing of a certificate described in division (A)(3) of section 252
2107.19 of the Revised Code. A person under any legal disability253
nevertheless may commence an action permitted by section 2107.71254
of the Revised Code to contest the validity of the will within 255
three months after the disability is removed, but the rights saved256
shall not affect the rights of a purchaser, lessee, or257
encumbrancer for value in good faith and shall not impose any258
liability upon a fiduciary who has acted in good faith, or upon a259
person delivering or transferring property to any other person260
under authority of a will, whether or not the purchaser, lessee,261
encumbrancer, fiduciary, or other person had actual or262
constructive notice of the legal disability.263

       (B) Section 2305.19 of the Revised Code does not apply to an 264
action permitted by section 2107.71 of the Revised Code to contest 265
the validity of a will.266

       Sec. 2111.05.  When the whole estate of a ward, or of several 267
wards jointly, under the same guardianship, does not exceed ten268
twenty-five thousand dollars in value, the guardian may apply to269
the probate court for an order to terminate the guardianship. Upon 270
proof that it would be for the best interest of the ward to271
terminate the guardianship, the court may order the guardianship272
terminated, and direct the guardian, if the ward is a minor, to273
deposit the assets of the guardianship in a depository authorized274
to receive fiduciary funds, payable to the ward when hethe ward275
attains majority, or the court may authorize the delivery of the 276
assets to the natural guardian of the minor, to the person by whom 277
the minor is maintained, to the executive director of children278
services in the county, or to the minor himselfminor's own self.279

       If the ward is an incompetent, and the court orders the280
guardianship terminated, the court may authorize the deposit of281
the assets of the guardianship in a depository authorized to282
receive fiduciary funds in the name of a suitable person to be283
designated by the court, or if the assets do not consist of money, 284
the court may authorize delivery to a suitable person to be 285
designated by the court. The person receiving the assets shall 286
hold and dispose of them in the manner the court directs.287

       If the court refuses to grant the application to terminate288
the guardianship, or if no such application is presented to the289
court, the guardian only shall be required to render account upon290
the termination of histhe guardianship, upon order of the probate291
court made upon its own motion, or upon the order of the court292
made on the motion of a person interested in the wards or their293
property, for good cause shown, and set forth upon the journal of294
the court.295

       If the estate is tentwenty-five thousand dollars or less and 296
the ward is a minor, the court, without the appointment of a 297
guardian by the court, or the giving of bond, may authorize the 298
deposit in a depository authorized to receive fiduciary funds, 299
payable to the guardian when appointed, or to the ward when hethe 300
ward attains majority, or the court may authorize delivery to the 301
natural guardian of the minor, to the person by whom the minor is 302
maintained, to the executive director who is responsible for the 303
administration of children services in the county, or to the minor 304
himselfminor's own self.305

       If the whole estate of a person over eighteen years of age,306
who has been adjudged mentally ill or mentally retarded307
incompetent, does not exceed tentwenty-five thousand dollars in 308
value, the court, without the appointment of a guardian by the 309
court or the giving of bond, may authorize the deposit of the 310
estate in a depository authorized to receive fiduciary funds in 311
the name of a suitable person to be designated by the court, or if 312
the assets do not consist of money, the court may authorize 313
delivery to a suitable person to be designated by the court. The 314
person receiving the assets shall hold and dispose of them in the 315
manner the court directs.316

       Sec. 2111.18. WhenIf personal injury, damage to tangible or317
intangible property, or damage or loss on account of personal318
injury or damage to tangible or intangible property is caused to a 319
ward by wrongful act, neglect, or default that would entitle the 320
ward to maintain an action and recover damages for the injury, 321
damage, or loss, and when any ward is entitled to maintain an 322
action for damages or any other relief based on any claim or is 323
subject to any claim to recover damages or any other relief based 324
on any claim, the guardian of the estate of the ward may adjust 325
and settle the claim with the advice, approval, and consent of the 326
probate court. In the settlement, if the ward is a minor, the 327
parent or parents may waive all claim for damages on account of 328
loss of service of the minor, and that claim may be included in 329
the settlement. However, whenIf it is proposed that thea claim 330
involved be settled for tenthe net amount of twenty-five thousand 331
dollars or less after payment of fees and expenses as allowed by 332
the court, the court, upon application by any suitable person whom 333
the court may authorize to receive and receipt for the settlement, 334
may authorize the settlement without the appointment of a guardian335
and authorize the delivery of the moneys to the natural guardian336
of the minor, to the person by whom the minor is maintained, or to 337
the minor himselfas provided in section 2111.05 of the Revised 338
Code. The court may authorize the minor or person receiving the 339
moneys to execute a complete release on account of the receipt. 340
The payment shall be a complete and final discharge of any such341
that claim. In the settlement, if the ward is a minor, the parent 342
or parents of the minor may waive all claim for damages on account 343
of loss of service of the minor, and that claim may be included in 344
the settlement.345

       Sec. 2305.19. (A) In any action that is commenced or 346
attempted to be commenced, if in due time a judgment for the 347
plaintiff is reversed or if the plaintiff fails otherwise than 348
upon the merits, the plaintiff or, if the plaintiff dies and the 349
cause of action survives, the plaintiff's representative may 350
commence a new action within one year after the date of the 351
reversal of the judgment or the plaintiff's failure otherwise than 352
upon the merits or within the period of the original applicable 353
statute of limitations, whichever occurs later. This division 354
applies to any claim asserted in any pleading by a defendant. 355

       (B) If the defendant in an action described in division (A) 356
of this section is a foreign or domestic corporation, and whether 357
its charter prescribes the manner or place of service of process 358
on the defendant, and if it passes into the hands of a receiver 359
before the expiration of the one year period or the period of the 360
original applicable statute of limitations, whichever is 361
applicable, as described in that division, then service to be made 362
within one year following the original service or attempt to begin 363
the action may be made upon that receiver or the receiver's364
cashier, treasurer, secretary, clerk, or managing agent, or if 365
none of these officers can be found, by a copy left at the office 366
or the usual place of business of any of those agents or officers367
of the receiver with the person having charge of the office or 368
place of business. If that corporation is a railroad company, 369
summons may be served on any regular ticket or freight agent of 370
the receiver, and if there is no regular ticket or freight agent 371
of the receiver, then upon any conductor of the receiver, in any 372
county in the state in which the railroad is located. The summons 373
shall be returned as if served on that defendant corporation.374

       (C) This section does not apply to an action or proceeding 375
arising under section 2106.22, 2107.76, 2109.35, 2115.16, 5806.04, 376
or 5810.05 of the Revised Code.377

       Sec. 5815.31.  Unless the trust or separation agreement378
provides otherwise, if, after executing a trust in which the379
grantor reserves to self a power to alter, amend, revoke, or380
terminate the provisions of the trust, a grantor is divorced, 381
obtains a dissolution of marriage, has the grantor's marriage382
annulled, or, upon actual separation from the grantor's spouse, 383
enters into a separation agreement pursuant to which the parties 384
intend to fully and finally settle their prospective property 385
rights in the property of the other, whether by expected 386
inheritance or otherwise, the spouse or former spouse of the 387
grantor shall be deemed to have predeceased the grantor, and any 388
provision in the trust conferring any beneficial interest or a 389
general or special power of appointment on the spouse or former390
spouse or nominating the spouse or former spouse as trustee or391
trust advisor shall be revoked. If the grantor remarries the392
grantor's former spouse or if the separation agreement is 393
terminated, the spouse shall not be deemed to have predeceased the 394
grantor, and any provision in the trust conferring any beneficial 395
interest or a general or special power of appointment on the 396
spouse or former spouse or nominating the spouse or former spouse 397
as trustee or trust advisor shall not be revoked.398

       Section 2. That existing sections 2101.16, 2107.76, 2111.05, 399
2111.18, 2305.19, and 5815.31 of the Revised Code are hereby 400
repealed.401