To amend sections 2101.01, 2101.02, 2101.021, 2101.03, 2101.04, 2101.06, 2101.07, 2101.08, 2101.09, 2101.10, 2101.11, 2101.13, 2101.15, 2101.16, 2101.162, 2101.19, 2101.20, 2101.22, 2101.23, 2101.24, 2101.27, 2101.30, 2101.34, 2101.37, 2101.38, 2101.41, 2101.43, 2103.01, 2105.051, 2105.06, 2105.10, 2105.11, 2105.13, 2105.14, 2105.15, 2105.16, 2105.19, 2106.01, 2106.08, 2106.11, 2107.01, 2107.02, 2107.03, 2107.04, 2107.05, 2107.07, 2107.08, 2107.081, 2107.082, 2107.083, 2107.084, 2107.085, 2107.09, 2107.10, 2107.11, 2107.15, 2107.17, 2107.18, 2107.20, 2107.21, 2107.22, 2107.29, 2107.32, 2107.34, 2107.35, 2107.36, 2107.38, 2107.46, 2107.47, 2107.49, 2107.50, 2107.501, 2107.51, 2107.52, 2107.53, 2107.54, 2107.55, 2107.56, 2107.58, 2107.59, 2107.60, 2107.61, 2107.65, 2107.71, 2107.73, 2107.75, 2108.51, 2109.02, 2109.021, 2109.03, 2109.04, 2109.05, 2109.06, 2109.07, 2109.09, 2109.10, 2109.11, 2109.12, 2109.14, 2109.17, 2109.19, 2109.20, 2109.21, 2109.22, 2109.24, 2109.25, 2109.26, 2109.302, 2109.303, 2109.32, 2109.33, 2109.34, 2109.35, 2109.36, 2109.361, 2109.37, 2109.371, 2109.372, 2109.38, 2109.39, 2109.40, 2109.42, 2109.43, 2109.44, 2109.45, 2109.46, 2109.47, 2109.48, 2109.49, 2109.50, 2109.51, 2109.52, 2109.53, 2109.54, 2109.55, 2109.56, 2109.57, 2109.58, 2109.59, 2109.60, 2109.61, 2109.62, 2111.02, 2111.021, 2111.031, 2111.04, 2111.041, 2111.06, 2111.07, 2111.09, 2111.091, 2111.12, 2111.131, 2111.14, 2111.141, 2111.16, 2111.17, 2111.181, 2111.19, 2111.20, 2111.21, 2111.22, 2111.25, 2111.26, 2111.27, 2111.28, 2111.29, 2111.30, 2111.31, 2111.33, 2111.34, 2111.35, 2111.36, 2111.37, 2111.38, 2111.39, 2111.40, 2111.41, 2111.44, 2111.46, 2111.48, 2111.50, 2113.01, 2113.03, 2113.04, 2113.05, 2113.06, 2113.07, 2113.12, 2113.13, 2113.14, 2113.15, 2113.16, 2113.18, 2113.19, 2113.20, 2113.21, 2113.22, 2113.25, 2113.30, 2113.31, 2113.311, 2113.33, 2113.34, 2113.35, 2113.36, 2113.39, 2113.40, 2113.41, 2113.45, 2113.46, 2113.48, 2113.49, 2113.50, 2113.51, 2113.52, 2113.54, 2113.58, 2113.61, 2113.62, 2113.67, 2113.68, 2113.69, 2113.70, 2113.72, 2113.73, 2113.74, 2113.75, 2113.81, 2113.82, 2113.85, 2113.86, 2113.87, 2113.88, 2115.02, 2115.03, 2115.06, 2115.09, 2115.10, 2115.11, 2115.12, 2115.16, 2115.17, 2117.01, 2117.02, 2117.03, 2117.04, 2117.061, 2117.08, 2117.09, 2117.10, 2117.13, 2117.15, 2117.17, 2117.18, 2117.30, 2117.31, 2117.34, 2117.35, 2117.36, 2117.37, 2117.41, 2117.42, 2119.01, 2119.02, 2119.03, 2119.04, 2119.05, 2121.01, 2121.02, 2121.05, 2121.06, 2121.08, 2121.09, 2123.02, 2123.03, 2123.05, 2123.06, 2127.011, 2127.02, 2127.04, 2127.05, 2127.06, 2127.07, 2127.08, 2127.09, 2127.10, 2127.11, 2127.12, 2127.13, 2127.14, 2127.15, 2127.16, 2127.17, 2127.18, 2127.19, 2127.21, 2127.22, 2127.23, 2127.24, 2127.27, 2127.28, 2127.29, 2127.30, 2127.32, 2127.33, 2127.34, 2127.35, 2127.36, 2127.37, 2127.38, 2127.39, 2127.40, 2127.41, 2127.42, 2127.43, 2129.02, 2129.05, 2129.08, 2129.11, 2129.13, 2129.14, 2129.15, 2129.17, 2129.18, 2129.19, 2129.23, 2129.25, 2129.26, 2129.28, 2129.29, 2129.30, 2131.08, 2131.11, 2133.04, 2133.05, 2133.06, 2133.08, 2133.09, 2151.13, 2335.34, 3101.02, 3101.03, 3101.10, 3101.13, 3101.14, 3313.85, and 5111.113; to enact new sections 2113.17 and 2113.26; and to repeal sections 2101.36, 2113.02, 2113.17, 2113.24, 2113.26, 2113.27, 2113.28, 2113.29, 2113.57, and 2113.63 of the Revised Code to make changes relative to the Probate Code.
SECTION 1. That sections 2101.01, 2101.02, 2101.021, 2101.03, 2101.04, 2101.06, 2101.07, 2101.08, 2101.09, 2101.10, 2101.11, 2101.13, 2101.15, 2101.16, 2101.162, 2101.19, 2101.20, 2101.22, 2101.23, 2101.24, 2101.27, 2101.30, 2101.34, 2101.37, 2101.38, 2101.41, 2101.43, 2103.01, 2105.051, 2105.06, 2105.10, 2105.11, 2105.13, 2105.14, 2105.15, 2105.16, 2105.19, 2106.01, 2106.08, 2106.11, 2107.01, 2107.02, 2107.03, 2107.04, 2107.05, 2107.07, 2107.08, 2107.081, 2107.082, 2107.083, 2107.084, 2107.085, 2107.09, 2107.10, 2107.11, 2107.15, 2107.17, 2107.18, 2107.20, 2107.21, 2107.22, 2107.29, 2107.32, 2107.34, 2107.35, 2107.36, 2107.38, 2107.46, 2107.47, 2107.49, 2107.50, 2107.501, 2107.51, 2107.52, 2107.53, 2107.54, 2107.55, 2107.56, 2107.58, 2107.59, 2107.60, 2107.61, 2107.65, 2107.71, 2107.73, 2107.75, 2108.51, 2109.02, 2109.021, 2109.03, 2109.04, 2109.05, 2109.06, 2109.07, 2109.09, 2109.10, 2109.11, 2109.12, 2109.14, 2109.17, 2109.19, 2109.20, 2109.21, 2109.22, 2109.24, 2109.25, 2109.26, 2109.302, 2109.303, 2109.32, 2109.33, 2109.34, 2109.35, 2109.36, 2109.361, 2109.37, 2109.371, 2109.372, 2109.38, 2109.39, 2109.40, 2109.42, 2109.43, 2109.44, 2109.45, 2109.46, 2109.47, 2109.48, 2109.49, 2109.50, 2109.51, 2109.52, 2109.53, 2109.54, 2109.55, 2109.56, 2109.57, 2109.58, 2109.59, 2109.60, 2109.61, 2109.62, 2111.02, 2111.021, 2111.031, 2111.04, 2111.041, 2111.06, 2111.07, 2111.09, 2111.091, 2111.12, 2111.131, 2111.14, 2111.141, 2111.16, 2111.17, 2111.181, 2111.19, 2111.20, 2111.21, 2111.22, 2111.25, 2111.26, 2111.27, 2111.28, 2111.29, 2111.30, 2111.31, 2111.33, 2111.34, 2111.35, 2111.36, 2111.37, 2111.38, 2111.39, 2111.40, 2111.41, 2111.44, 2111.46, 2111.48, 2111.50, 2113.01, 2113.03, 2113.04, 2113.05, 2113.06, 2113.07, 2113.12, 2113.13, 2113.14, 2113.15, 2113.16, 2113.18, 2113.19, 2113.20, 2113.21, 2113.22, 2113.25, 2113.30, 2113.31, 2113.311, 2113.33, 2113.34, 2113.35, 2113.36, 2113.39, 2113.40, 2113.41, 2113.45, 2113.46, 2113.48, 2113.49, 2113.50, 2113.51, 2113.52, 2113.54, 2113.58, 2113.61, 2113.62, 2113.67, 2113.68, 2113.69, 2113.70, 2113.72, 2113.73, 2113.74, 2113.75, 2113.81, 2113.82, 2113.85, 2113.86, 2113.87, 2113.88, 2115.02, 2115.03, 2115.06, 2115.09, 2115.10, 2115.11, 2115.12, 2115.16, 2115.17, 2117.01, 2117.02, 2117.03, 2117.04, 2117.061, 2117.08, 2117.09, 2117.10, 2117.13, 2117.15, 2117.17, 2117.18, 2117.30, 2117.31, 2117.34, 2117.35, 2117.36, 2117.37, 2117.41, 2117.42, 2119.01, 2119.02, 2119.03, 2119.04, 2119.05, 2121.01, 2121.02, 2121.05, 2121.06, 2121.08, 2121.09, 2123.02, 2123.03, 2123.05, 2123.06, 2127.011, 2127.02, 2127.04, 2127.05, 2127.06, 2127.07, 2127.08, 2127.09, 2127.10, 2127.11, 2127.12, 2127.13, 2127.14, 2127.15, 2127.16, 2127.17, 2127.18, 2127.19, 2127.21, 2127.22, 2127.23, 2127.24, 2127.27, 2127.28, 2127.29, 2127.30, 2127.32, 2127.33, 2127.34, 2127.35, 2127.36, 2127.37, 2127.38, 2127.39, 2127.40, 2127.41, 2127.42, 2127.43, 2129.02, 2129.05, 2129.08, 2129.11, 2129.13, 2129.14, 2129.15, 2129.17, 2129.18, 2129.19, 2129.23, 2129.25, 2129.26, 2129.28, 2129.29, 2129.30, 2131.08, 2131.11, 2133.04, 2133.05, 2133.06, 2133.08, 2133.09, 2151.13, 2335.34, 3101.02, 3101.03, 3101.10, 3101.13, 3101.14, 3313.85, and 5111.113 be amended and new sections 2113.17 and 2113.26 of the Revised Code be enacted to read as follows:
Sec. 2101.01. (A) A probate division of the court of common
pleas shall be held at the county seat in each county in an office
furnished by the board of county commissioners, in which the
books, records, and papers pertaining to the probate division
shall be deposited and safely kept by the probate judge. The board
shall provide suitable cases equipment or other necessary items
for the safekeeping and preservation of the books, records, and
papers of the court and shall furnish any blankbooks, blanks
books, forms, and stationery, and any machines, equipment, and
materials for the keeping or examining of records, that the
probate judge requires in the discharge of official duties. The
board also shall authorize expenditures for accountants, financial
consultants, and other agents required for auditing or financial
consulting by the probate division whenever the probate judge
considers these services and expenditures necessary for the
efficient performance of the division's duties. The probate judge
shall employ and supervise all clerks, deputies, magistrates, and
other employees of the probate division. The probate judge shall
supervise all probate court investigators and assessors in the
performance of their duties as investigators and assessors and
shall employ, appoint, or designate all probate court
investigators and assessors in the manner described in divisions
(A)(2) and (3) of section 2101.11 of the Revised Code.
(B) As used in the Revised Code:
(1) Except as provided in division (B)(2) of this section, "probate court" means the probate division of the court of common pleas, and "probate judge" means the judge of the court of common pleas who is judge of the probate division.
(2) With respect to Lorain county:
(a) From February 9, 2009, through September 28, 2009, "probate court" means the domestic relations division of the court of common pleas, and "probate judge" means each of the judges of the court of common pleas who are judges of the domestic relations division.
(b) The judge of the court of common pleas, division of domestic relations, whose term begins on February 9, 2009, and successors, shall be the probate judge beginning September 29, 2009, and shall be elected and designated as judge of the court of common pleas, probate division.
(C) Except as otherwise provided in this division, all pleadings, forms, journals, and other records filed or used in the probate division shall be entitled "In the Court of Common Pleas, Probate Division," but are not defective if entitled "In the Probate Court." In Lorain county, from February 9, 2009, through September 28, 2009, all pleadings, forms, journals, and other records filed or used in probate matters shall be entitled "In the Court of Common Pleas, Domestic Relations Division," but are not defective if entitled "In the Probate Division" or "In the Probate Court."
Sec. 2101.02. Every six years, in each county having a
separate judge of the probate division of the court of common
pleas, one probate judge shall be elected who is qualified as
required by section 2301.01 of the Revised Code.
He The probate
judge shall hold office for six years, commencing on the ninth day
of February next following his the judge's election.
Sec. 2101.021. There shall be one additional probate judge for the probate court of Cuyahoga County.
Such The additional judge shall be elected at the general
election to be held in 1954 and every six years thereafter, for a
term of six years commencing on the first day of January next
following his the additional judge's election.
The judge elected pursuant to this section shall comply with the qualifications provided for in section 2101.02 of the Revised Code.
The probate judge who is senior in point of service shall be the presiding judge and shall have the care and custody of the files, papers, books and records belonging to the probate court of Cuyahoga county and shall have all the other powers and duties of the judge as provided in section 2101.11 of the Revised Code.
Sec. 2101.03. Before entering upon the discharge of his
official duties, the probate judge shall give a bond to the state
in a sum not less than five thousand dollars. Such The bond shall
have sufficient surety, shall be approved by the board of county
commissioners, or by the county auditor and county recorder in the
absence from the county of two of the members of the board, and
shall be conditioned that such the judge will faithfully pay over
all moneys received by
him the judge in his the judge's official
capacity, enter and record the orders, judgments, and proceedings
of the court, and faithfully and impartially perform all the
duties of his the judge's office. Such The bond, with the oath of
office required by sections 3.22 and 3.23 of the Revised Code
indorsed thereon on it, shall be deposited with the county
treasurer and kept in his the treasurer's office. As the state of
business in his the probate judge's office renders it necessary,
the board may require the probate judge to give additional bond.
Sec. 2101.04. The several judge or judges of the probate
court shall make rules regulating the practice and conducting the
business of the court, which they and the judge or judges shall
submit those rules to the supreme court. In order to maintain
regularity and uniformity in the proceedings of all the probate
courts, the supreme court may alter and amend such the rules
submitted by the judge or judges of a probate court and make other
rules.
Sec. 2101.06. The probate judge, upon the motion of a party
or his the judge's own motion, may appoint a special master
commissioner in any matter pending before such the judge. Such The
commissioner shall be an attorney at law, and shall be sworn
faithfully to discharge his the commissioner's duties. When
requested by the probate judge, such the commissioner shall
execute a bond to the state in such the sum as that the court
directs, with surety approved by the court, and conditioned that
such the commissioner will shall faithfully discharge his the
commissioner's duties and pay over all money received by him the
commissioner in that capacity. Such The bond shall be for the
benefit of anyone aggrieved and shall be filed in the probate
court.
Such The commissioner shall take the testimony and report
such the testimony to the court with his the commissioner's
conclusions on the law and the facts involved therein, which. The
report may be excepted to by the parties, and confirmed, modified,
or set aside by the court.
Sec. 2101.07. A special master commissioner of the probate
court may administer all oaths required in the discharge of his
the commissioner's duties, may summon and enforce the attendance
of witnesses, may compel the production of books and papers, and
may grant adjournments the same as the court, and, when the court
directs, such the commissioner shall require the witnesses
severally to subscribe their the witnesses' testimony.
All process and orders issued by such the commissioner, shall
be directed to the sheriff and, shall be served, and return
thereof of the process and orders shall be made, as if issued by
the probate judge.
The court shall allow such the commissioner such those fees
as that are allowed to other officers for similar services, which
and the court shall tax those fees shall be taxed with the costs.
Sec. 2101.08. The probate judge may appoint a stenographic
reporter court reporters and fix
his their compensation in the
manner provided for the court of common pleas in sections 2301.18
to 2301.26, inclusive, of the Revised Code.
Sec. 2101.09. When required by the probate judge, sheriffs,
coroners, and constables shall attend his the judge's court and
shall serve and return process directed and delivered to them by
such the judge. No such officer of that type shall neglect or
refuse to serve and return such any process as required by this
section. If such an officer does neglect or refuse to serve and
return such process as required by this section, the judge shall
issue a summons specifying the cause for amercement, directed to
the officer, therein named in the summons, commanding
him the
named officer to summon the officer guilty of such the misconduct
to appear within two days after the service of summons and show
cause why he the latter officer should not be amerced. In addition
to a fine, as provided by section 2101.99 of the Revised Code,
that is to be paid into the county treasury, such the officer and
his the officer's sureties shall be liable upon his the officer's
official bond for damages sustained by any person by reason of
such the officer's misconduct.
Sec. 2101.10. No sheriff, coroner, or constable shall refuse
to pay moneys, collected by him, that officer to the probate judge
or other person, when so directed by the judge. For refusal to pay
over moneys collected, such the officer shall be summoned as
provided in section 2101.09 of the Revised Code and amerced for
the use of the parties interested, in the amount required to be
collected by
such the process, with ten per cent thereon on the
amount to be collected. The judge may enforce the collection of
such the amercement by execution or other process, by imprisonment
as for contempt of court, or both. The delinquent officer and his
the officer's sureties shall also be liable on his the officer's
official bond for the amount of the amercement at the suit of the
person interested.
Sec. 2101.11. (A)(1) The probate judge shall have the care
and custody of the files, papers, books, and records belonging to
the probate court. The probate judge is authorized to perform the
duties of clerk of the judge's court. The probate judge may
appoint deputy clerks,
stenographers court reporters, a bailiff,
and any other necessary employees, each of whom shall take an oath
of office before entering upon the duties of the employee's
appointment and, when so qualified, may perform the duties
appertaining to the office of clerk of the court.
(2)(a) The probate judge shall provide for one or more probate court investigators to perform the duties that are established for a probate court investigator by the Revised Code or the probate judge. The probate judge may provide for an investigator in any of the following manners, as the court determines is appropriate:
(i) By appointing a person as a full-time or part-time employee of the probate court to serve as investigator, or by designating a current full-time or part-time employee of the probate court to serve as investigator;
(ii) By contracting with a person to serve and be compensated as investigator only when needed by the probate court, as determined by the court, and by designating that person as a probate court investigator during the times when the person is performing the duties of an investigator for the court;
(iii) By entering into an agreement with another department or agency of the county, including, but not limited to, the sheriff's department or the county department of job and family services, pursuant to which an employee of the other department or agency will serve and perform the duties of investigator for the court, upon request of the probate judge, and designating that employee as a probate court investigator during the times when the person is performing the duties of an investigator for the court.
(b) Each person appointed or otherwise designated as a probate court investigator shall take an oath of office before entering upon the duties of the person's appointment. When so qualified, an investigator may perform the duties that are established for a probate court investigator by the Revised Code or the probate judge.
(c) Except as otherwise provided in this division, a probate court investigator shall hold at least a bachelor's degree in social work, psychology, education, special education, or a related human services field. A probate judge may waive the education requirement of this division for a person the judge appoints or otherwise designates as a probate court investigator if the judge determines that the person has experience in family services work that is equivalent to the required education.
(d) Within one year after appointment or designation, a probate court investigator shall attend an orientation course of at least six hours, and each calendar year after the calendar year of appointment or designation, a probate court investigator shall satisfactorily complete at least six hours of continuing education.
(e) For purposes of divisions (A)(4), (B), and (C) of this section, a person designated as a probate court investigator under division (A)(2)(a)(ii) or (iii) of this section shall be considered an appointee of the probate court at any time that the person is performing the duties established under the Revised Code or by the probate judge for a probate court investigator.
(3)(a) The probate judge may provide for one or more persons to perform the duties of an assessor under sections 3107.031, 3107.032, 3107.082, 3107.09, 3107.101, and 3107.12 of the Revised Code or may enter into agreements with public children services agencies, private child placing agencies, or private noncustodial agencies under which the agency provides for one or more persons to perform the duties of an assessor. A probate judge who provides for an assessor shall do so in either of the following manners, as the judge considers appropriate:
(i) By appointing a person as a full-time or part-time employee of the probate court to serve as assessor, or by designating a current full-time or part-time employee of the probate court to serve as assessor;
(ii) By contracting with a person to serve and be compensated as assessor only when needed by the probate court, as determined by the court, and by designating that person as an assessor during the times when the person is performing the duties of an assessor for the court.
(b) Each person appointed or designated as a probate court assessor shall take an oath of office before entering on the duties of the person's appointment.
(c) A probate court assessor must meet the qualifications for an assessor established by section 3107.014 of the Revised Code.
(d) A probate court assessor shall perform additional duties, including duties of an investigator under division (A)(2) of this section, when the probate judge assigns additional duties to the assessor.
(e) For purposes of divisions (A)(4), (B), and (C) of this section, a person designated as a probate court assessor shall be considered an appointee of the probate court at any time that the person is performing assessor duties.
(4) Each appointee of the probate judge may administer oaths in all cases when necessary, in the discharge of official duties.
(B)(1)(a) Subject to the appropriation made by the board of county commissioners pursuant to this division, each appointee of a probate judge under division (A) of this section shall receive such compensation and expenses as the judge determines and shall serve during the pleasure of the judge. The compensation of each appointee shall be paid in semimonthly installments by the county treasurer from the county treasury, upon the warrants of the county auditor, certified to by the judge.
(b) Except as otherwise provided in the Revised Code, the total compensation paid to all appointees of the probate judge in any calendar year shall not exceed the total fees earned by the probate court during the preceding calendar year, unless the board of county commissioners approves otherwise.
(2) The probate judge annually shall submit a written request for an appropriation to the board of county commissioners that shall set forth estimated administrative expenses of the court, including the salaries of appointees as determined by the judge and any other costs, fees, and expenses, including, but not limited to, those enumerated in section 5123.96 of the Revised Code, that the judge considers reasonably necessary for the operation of the court. The board shall conduct a public hearing with respect to the written request submitted by the judge and shall appropriate such sum of money each year as it determines, after conducting the public hearing and considering the written request of the judge, is reasonably necessary to meet all the administrative expenses of the court, including the salaries of appointees as determined by the judge and any other costs, fees, and expenses, including, but not limited to, the costs, fees, and expenses enumerated in section 5123.96 of the Revised Code.
If the judge considers the appropriation made by the board pursuant to this division insufficient to meet all the administrative expenses of the court, the judge shall commence an action under Chapter 2731. of the Revised Code in the court of appeals for the judicial district for a determination of the duty of the board of county commissioners to appropriate the amount of money in dispute. The court of appeals shall give priority to the action filed by the probate judge over all cases pending on its docket. The burden shall be on the probate judge to prove that the appropriation requested is reasonably necessary to meet all administrative expenses of the court. If, prior to the filing of an action under Chapter 2731. of the Revised Code or during the pendency of the action, the judge exercises the judge's contempt power in order to obtain the sum of money in dispute, the judge shall not order the imprisonment of any member of the board of county commissioners notwithstanding sections 2705.02 to 2705.06 of the Revised Code.
(C) The probate judge may require any of the judge's appointees to give bond in the sum of not less than one thousand dollars, conditioned for the honest and faithful performance of the appointee's duties. The sureties on the bonds shall be approved in the manner provided in section 2101.03 of the Revised Code.
The judge is shall not be personally liable for the default,
malfeasance, or nonfeasance of any such appointee, but, if a bond
is required of the appointee, the liability of the judge is
limited to the amount by which the loss resulting from the
default, malfeasance, or nonfeasance exceeds the amount of the
bond.
All bonds required to be given in the probate court, on being accepted and approved by the probate judge, shall be filed in the judge's office.
Sec. 2101.13. When a probate judge, whether elected or
appointed, enters upon the discharge of his the judge's official
duties, he the judge shall make, in the books and other
record-keeping materials of his the judge's office, the proper
records, entries, and indexes omitted by his the judge's
predecessors in office. When made, the entries shall have the same
validity and effect as though they had been made at the proper
time and by the officer whose duty it was to make them, and the
judge shall sign all entries and records made by him the judge as
though the entries, proceedings, and records had been commenced,
prosecuted, determined, and made by or before
him the judge.
Sec. 2101.15. In each case, examination, or proceeding, the
probate judge shall file an itemized account of fees received or
charged by
him the judge. On the first day of January, in each
year,
he the judge shall file with the county auditor an account,
certified by such the judge, of all fees received by
him the judge
during the preceding year. No judge shall fail to perform the
duties imposed in this section. At the instance of any person, an
action shall be instituted and prosecuted by the prosecuting
attorney shall institute and prosecute an action against any such
the defaulting judge.
Sec. 2101.16. (A) Except as provided in section 2101.164 of the Revised Code, the fees enumerated in this division shall be charged and collected, if possible, by the probate judge and shall be in full for all services rendered in the respective proceedings:
(1) | Account, in addition to advertising charges | ||||||
$ | 12.00 | ||||||
Waivers and proof of notice of hearing on account, per page, minimum one dollar | |||||||
$ | 1.00 | ||||||
(2) | Account of distribution, in addition to advertising charges | ||||||
$ | 7.00 | ||||||
(3) | Adoption of child, petition for | ||||||
$ | 50.00 | ||||||
(4) | Alter or cancel contract for sale or purchase of real |
||||||
$ | 20.00 | ||||||
(5) | Application and order not otherwise provided for in this section or by rule adopted pursuant to division (E) of this section | ||||||
$ | 5.00 | ||||||
(6) | Appropriation suit, per day, hearing in | ||||||
$ | 20.00 | ||||||
(7) | Birth, application for registration of | ||||||
$ | 7.00 | ||||||
(8) | Birth record, application to correct | ||||||
$ | 5.00 | ||||||
(9) | Bond, application for new or additional | ||||||
$ | 5.00 | ||||||
(10) | Bond, application for release of surety or reduction of | ||||||
$ | 5.00 | ||||||
(11) | Bond, receipt for securities deposited in lieu of | ||||||
$ | 5.00 | ||||||
(12) | Certified copy of journal entry, record, or proceeding, per page, minimum fee one dollar | ||||||
$ | 1.00 | ||||||
(13) | Citation and issuing citation, application for | ||||||
$ | 5.00 | ||||||
(14) | Change of name, petition for | ||||||
$ | 20.00 | ||||||
(15) | Claim, application of administrator or executor for allowance of administrator's or executor's own | ||||||
$ | 10.00 | ||||||
(16) | Claim, application to compromise or settle | ||||||
$ | 10.00 | ||||||
(17) | Claim, authority to present | ||||||
$ | 10.00 | ||||||
(18) | Commissioner, appointment of | ||||||
$ | 5.00 | ||||||
(19) | Compensation for extraordinary services and attorney's fees for fiduciary, application for | ||||||
$ | 5.00 | ||||||
(20) | Competency, application to procure adjudication of | ||||||
$ | 20.00 | ||||||
(21) | Complete contract, application to | ||||||
$ | 10.00 | ||||||
(22) | Concealment of assets, citation for | ||||||
$ | 10.00 | ||||||
(23) | Construction of will, |
||||||
$ | 20.00 | ||||||
(24) | Continue decedent's business, application to | ||||||
$ | 10.00 | ||||||
Monthly reports of operation | |||||||
$ | 5.00 | ||||||
(25) | Declaratory judgment, |
||||||
$ | 20.00 | ||||||
(26) | Deposit of will | ||||||
$ | 5.00 | ||||||
(27) | Designation of heir | ||||||
$ | 20.00 | ||||||
(28) | Distribution in kind, application, assent, and order for | ||||||
$ | 5.00 | ||||||
(29) | Distribution under section 2109.36 of the Revised Code, application for an order of | ||||||
$ | 7.00 | ||||||
(30) | Docketing and indexing proceedings, including the filing and noting of all necessary documents, maximum fee, fifteen dollars | ||||||
$ | 15.00 | ||||||
(31) | Exceptions to any proceeding named in this section, contest of appointment or | ||||||
$ | 10.00 | ||||||
(32) | Election of surviving partner to purchase assets of partnership, proceedings relating to | ||||||
$ | 10.00 | ||||||
(33) | Election of surviving spouse under will | ||||||
$ | 5.00 | ||||||
(34) | Fiduciary, including an assignee or trustee of an insolvent debtor or any guardian or conservator accountable to the probate court, appointment of | ||||||
$ | 35.00 | ||||||
(35) | Foreign will, application to record | ||||||
$ | 10.00 | ||||||
Record of foreign will, additional, per page | |||||||
$ | 1.00 | ||||||
(36) | Forms when supplied by the probate court, not to exceed | ||||||
$ | 10.00 | ||||||
(37) | Heirship, |
||||||
$ | 20.00 | ||||||
(38) | Injunction proceedings | ||||||
$ | 20.00 | ||||||
(39) | Improve real |
||||||
$ | 20.00 | ||||||
(40) | Inventory with appraisement | ||||||
$ | 10.00 | ||||||
(41) | Inventory without appraisement | ||||||
$ | 7.00 | ||||||
(42) | Investment or expenditure of funds, application for | ||||||
$ | 10.00 | ||||||
(43) | Invest in real |
||||||
$ | 10.00 | ||||||
(44) | Lease for oil, gas, coal, or other mineral, petition to | ||||||
$ | 20.00 | ||||||
(45) | Lease or lease and improve real |
||||||
$ | 20.00 | ||||||
(46) | Marriage license | ||||||
$ | 10.00 | ||||||
Certified abstract of each marriage | |||||||
$ | 2.00 | ||||||
(47) | Minor or incompetent person, etc., disposal of estate under twenty-five thousand dollars of | ||||||
$ | 10.00 | ||||||
(48) | Mortgage or mortgage and repair or improve real |
||||||
$ | 20.00 | ||||||
(49) | Newly discovered assets, report of | ||||||
$ | 7.00 | ||||||
(50) | Nonresident executor or administrator to bar creditors' claims, proceedings by | ||||||
$ | 20.00 | ||||||
(51) | Power of attorney or revocation of power, bonding company | ||||||
$ | 10.00 | ||||||
(52) | Presumption of death, petition to establish | ||||||
$ | 20.00 | ||||||
(53) | Probating will | ||||||
$ | 15.00 | ||||||
Proof of notice to beneficiaries | |||||||
$ | 5.00 | ||||||
(54) | Purchase personal property, application of surviving spouse to | ||||||
$ | 10.00 | ||||||
(55) | Purchase real |
||||||
$ | 20.00 | ||||||
(56) | Receipts in addition to advertising charges, application and order to record | ||||||
$ | 5.00 | ||||||
Record of those receipts, additional, per page | |||||||
$ | 1.00 | ||||||
(57) | Record in excess of fifteen hundred words in any proceeding in the probate court, per page | ||||||
$ | 1.00 | ||||||
(58) | Release of estate by mortgagee or other lienholder | ||||||
$ | 5.00 | ||||||
(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 | ||||||
$ | 60.00 | ||||||
(60) | Removal of fiduciary, application for | ||||||
$ | 10.00 | ||||||
(61) | Requalification of executor or administrator | ||||||
$ | 10.00 | ||||||
(62) | Resignation of fiduciary | ||||||
$ | 5.00 | ||||||
(63) | Sale bill, public sale of personal property | ||||||
$ | 10.00 | ||||||
(64) | Sale of personal property and report, application for | ||||||
$ | 10.00 | ||||||
(65) | Sale of real |
||||||
$ | 25.00 | ||||||
(66) | Terminate guardianship, petition to | ||||||
$ | 10.00 | ||||||
(67) | Transfer of real |
||||||
$ | 7.00 | ||||||
(68) | Unclaimed money, application to invest | ||||||
$ | 7.00 | ||||||
(69) | Vacate approval of account or order of distribution, motion to | ||||||
$ | 10.00 | ||||||
(70) | Writ of execution | ||||||
$ | 5.00 | ||||||
(71) | Writ of possession | ||||||
$ | 5.00 | ||||||
(72) | Wrongful death, application and settlement of claim for | ||||||
$ | 20.00 | ||||||
(73) | Year's allowance, petition to review | ||||||
$ | 7.00 | ||||||
(74) | Guardian's report, filing and review of | ||||||
$ | 5.00 |
(B)(1) In relation to an application for the appointment of a guardian or the review of a report of a guardian under section 2111.49 of the Revised Code, the probate court, pursuant to court order or in accordance with a court rule, may direct that the applicant or the estate pay any or all of the expenses of an investigation conducted pursuant to section 2111.041 or division (A)(2) of section 2111.49 of the Revised Code. If the investigation is conducted by a public employee or investigator who is paid by the county, the fees for the investigation shall be paid into the county treasury. If the court finds that an alleged incompetent or a ward is indigent, the court may waive the costs, fees, and expenses of an investigation.
(2) In relation to the appointment or functioning of a guardian for a minor or the guardianship of a minor, the probate court may direct that the applicant or the estate pay any or all of the expenses of an investigation conducted pursuant to section 2111.042 of the Revised Code. If the investigation is conducted by a public employee or investigator who is paid by the county, the fees for the investigation shall be paid into the county treasury. If the court finds that the guardian or applicant is indigent, the court may waive the costs, fees, and expenses of an investigation.
(C) Thirty dollars of the thirty-five-dollar fee collected pursuant to division (A)(34) of this section and twenty dollars of the sixty-dollar fee collected pursuant to division (A)(59) of this section shall be deposited by the county treasurer in the indigent guardianship fund created pursuant to section 2111.51 of the Revised Code.
(D) The fees of witnesses, jurors, sheriffs, coroners, and
constables for services rendered in the probate court or by order
of the probate judge shall be the same as provided for like
similar services in the court of common pleas.
(E) The probate court, by rule, may require an advance deposit for costs, not to exceed one hundred twenty-five dollars, at the time application is made for an appointment as executor or administrator or at the time a will is presented for probate.
(F) The probate court, by rule, shall establish a reasonable fee, not to exceed fifty dollars, for the filing of a petition for the release of information regarding an adopted person's name by birth and the identity of the adopted person's biological parents and biological siblings pursuant to section 3107.41 of the Revised Code, all proceedings relative to the petition, the entry of an order relative to the petition, and all services required to be performed in connection with the petition. The probate court may use a reasonable portion of a fee charged under authority of this division to reimburse any agency, as defined in section 3107.39 of the Revised Code, for any services it renders in performing a task described in section 3107.41 of the Revised Code relative to or in connection with the petition for which the fee was charged.
(G)(1) Thirty dollars of the fifty-dollar fee collected pursuant to division (A)(3) of this section shall be deposited into the "putative father registry fund," which is hereby created in the state treasury. The department of job and family services shall use the money in the fund to fund the department's costs of performing its duties related to the putative father registry established under section 3107.062 of the Revised Code.
(2) If the department determines that money in the putative father registry fund is more than is needed for its duties related to the putative father registry, the department may use the surplus moneys in the fund as permitted in division (C) of section 2151.3529, division (B) of section 2151.3530, or section 5103.155 of the Revised Code.
Sec. 2101.162. (A)(1) The probate judge may determine that,
for the efficient operation of the probate court, additional funds
are required to computerize the court, make available computerized
legal research services, or to do both. Upon making a
determination that additional funds are required for either or
both of those purposes, the probate judge shall charge a fee not
to exceed three dollars or authorize and direct a deputy clerk of
his the probate court to charge a fee not to exceed three dollars,
in addition to the fees specified in divisions (A)(1), (3), (4),
(6), (14) to (17), (20) to (25), (27), (30) to (32), (34), (35),
(37) to (48), (50) to (55), (59) to (61), (63) to (66), (69), and
(72) of section 2101.16 of the Revised Code, the fee adopted
pursuant to division (F) of that section, and the fee charged in
connection with the docketing and indexing of an appeal.
(2) All moneys collected under division (A)(1) of this section shall be paid to the county treasurer. The treasurer shall place the moneys from the fees in a separate fund to be disbursed, upon an order of the probate judge, in an amount no greater than the actual cost to the court of procuring and maintaining computerization of the court, computerized legal research services, or both.
(3) If the court determines that the funds in the fund described in division (A)(2) of this section are more than sufficient to satisfy the purpose for which the additional fee described in division (A)(1) of this section was imposed, the court may declare a surplus in the fund and expend those surplus funds for other appropriate technological expenses of the court.
(B)(1) The probate judge may determine that, for the
efficient operation of his the probate court, additional funds are
required to computerize the office of the clerk of the court and,
upon that determination, may charge a fee, not to exceed ten
dollars, or authorize and direct a deputy clerk of the probate
court to charge a fee, not to exceed ten dollars, in addition to
the fees specified in divisions (A)(1), (3), (4), (6), (14) to
(17), (20) to (25), (27), (30) to (32), (34), (35), (37) to (48),
(50) to (55), (59) to (61), (63) to (66), (69), and (72) of
section 2101.16 of the Revised Code, the fee adopted pursuant to
division (F) of that section, and the fee charged in connection
with the docketing and indexing of an appeal. Subject to division
(B)(2) of this section, all moneys collected under this division
shall be paid to the county treasurer to be disbursed, upon an
order of the probate judge and subject to appropriation by the
board of county commissioners, in an amount no greater than the
actual cost to the probate court of procuring and maintaining
computer systems for the office of the clerk of the court.
(2) If the probate judge makes the determination described in division (B)(1) of this section, the board of county commissioners may issue one or more general obligation bonds for the purpose of procuring and maintaining the computer systems for the office of the clerk of the probate court. In addition to the purposes stated in division (B)(1) of this section for which the moneys collected under that division may be expended, the moneys additionally may be expended to pay debt charges on and financing costs related to any general obligation bonds issued pursuant to this division as they become due. General obligation bonds issued pursuant to this division are Chapter 133. securities.
Sec. 2101.19. (A) No probate judge or his probate judge's
deputy clerk shall sell or offer for sale for more than one dollar
any merchandise to be used in connection with any license, order,
or document issued by the probate court, or make any charge in
connection with the issuance of any license, order, or document
except that specifically provided by law.
(B) All moneys obtained from the sale of merchandise to be used in connection with any license, order, or document issued by a probate court shall be paid by the probate judge or the deputy clerk of the court into the county treasury. The moneys shall be credited to a fund to be known as the probate court conduct of business fund. The moneys so credited shall be used solely for the conduct of the business of the probate court.
(C) Upon receipt of an order of the probate judge for the payment of moneys from the fund for the conduct of the business of the court, the county auditor shall draw a warrant on the county treasurer for the amount of money specified in the order, but not exceeding the balance of the moneys in the fund, which warrant shall be made payable to the probate judge or another person designated in the order.
Sec. 2101.20. When the aggregate amount of fees and
allowances collected by the probate judge in any calendar year
exceeds by more than ten per cent the amount necessary to pay the
salaries of said the judge and the employees of the probate court,
including court constables, for the same calendar year, such the
judge may, by an order entered on his the judge's journal, provide
for a discount of all the fees and allowances he the judge is
required to charge and collect for the use of the county by fixing
a per cent of discount which that shall be applied to all the
earnings of said the office for the ensuing year and shall
constitute the legal fees of said the office for said that year.
Sec. 2101.22. The probate judge shall issue any process,
notices, commissions, rules, and orders that are necessary to
carry into effect the powers granted to him the judge.
Sec. 2101.23. The probate judge may keep order in his the
judge's court and has authority throughout the state to compel
performance of any duty incumbent upon any fiduciary appointed by
or accounting to him the judge. The probate judge may punish any
contempt of his the judge's authority as such that contempt might
be punished in the court of common pleas.
If a person neglects or refuses to perform an order or
judgment of a probate court, other than for the payment of money,
he shall be the person is guilty of a contempt of court, and the
judge shall issue a summons directing such the person to appear
before the court, within two days from the service thereof, of the
summons and show cause why
he the person should not be punished
for contempt. If it appears to the judge that such the person is
secreting himself attempting to avoid the process of the court, or
is about to leave the county for that purpose, the judge may issue
an attachment instead of the summons, commanding the officer, to
whom it is directed, to bring such the person before such the
judge to answer for contempt. If no sufficient excuse is shown,
such the person shall be punished for contempt.
Sec. 2101.24. (A)(1) Except as otherwise provided by law, the probate court has exclusive jurisdiction:
(a) To take the proof of wills and to admit to record authenticated copies of wills executed, proved, and allowed in the courts of any other state, territory, or country. If the probate judge is unavoidably absent, any judge of the court of common pleas may take proof of wills and approve bonds to be given, but the record of these acts shall be preserved in the usual records of the probate court.
(b) To grant and revoke letters testamentary and of administration;
(c) To direct and control the conduct and settle the accounts of executors and administrators and order the distribution of estates;
(d) To appoint the attorney general to serve as the administrator of an estate pursuant to section 2113.06 of the Revised Code;
(e) To appoint and remove guardians, conservators, and testamentary trustees, direct and control their conduct, and settle their accounts;
(f) To grant marriage licenses;
(g) To make inquests respecting persons who are so mentally impaired as a result of a mental or physical illness or disability, or mental retardation, or as a result of chronic substance abuse, that they are unable to manage their property and affairs effectively, subject to guardianship;
(h) To qualify assignees, appoint and qualify trustees and commissioners of insolvents, control their conduct, and settle their accounts;
(i) To authorize the sale of lands, equitable estates, or interests in lands or equitable estates, and the assignments of inchoate dower in such cases of sale, on petition by executors, administrators, and guardians;
(j) To authorize the completion of real estate property
contracts on petition of executors and administrators;
(k) To construe wills;
(l) To render declaratory judgments, including, but not limited to, those rendered pursuant to section 2107.084 of the Revised Code;
(m) To direct and control the conduct of fiduciaries and settle their accounts;
(n) To authorize the sale or lease of any estate created by will if the estate is held in trust, on petition by the trustee;
(o) To terminate a testamentary trust in any case in which a court of equity may do so;
(p) To hear and determine actions to contest the validity of wills;
(q) To make a determination of the presumption of death of missing persons and to adjudicate the property rights and obligations of all parties affected by the presumption;
(r) To hear and determine an action commenced pursuant to section 3107.41 of the Revised Code to obtain the release of information pertaining to the birth name of the adopted person and the identity of the adopted person's biological parents and biological siblings;
(s) To act for and issue orders regarding wards pursuant to section 2111.50 of the Revised Code;
(t) To hear and determine actions against sureties on the bonds of fiduciaries appointed by the probate court;
(u) To hear and determine actions involving informed consent for medication of persons hospitalized pursuant to section 5122.141 or 5122.15 of the Revised Code;
(v) To hear and determine actions relating to durable powers of attorney for health care as described in division (D) of section 1337.16 of the Revised Code;
(w) To hear and determine actions commenced by objecting individuals, in accordance with section 2133.05 of the Revised Code;
(x) To hear and determine complaints that pertain to the use or continuation, or the withholding or withdrawal, of life-sustaining treatment in connection with certain patients allegedly in a terminal condition or in a permanently unconscious state pursuant to division (E) of section 2133.08 of the Revised Code, in accordance with that division;
(y) To hear and determine applications that pertain to the withholding or withdrawal of nutrition and hydration from certain patients allegedly in a permanently unconscious state pursuant to section 2133.09 of the Revised Code, in accordance with that section;
(z) To hear and determine applications of attending physicians in accordance with division (B) of section 2133.15 of the Revised Code;
(aa) To hear and determine actions relative to the use or continuation of comfort care in connection with certain principals under durable powers of attorney for health care, declarants under declarations, or patients in accordance with division (E) of either section 1337.16 or 2133.12 of the Revised Code;
(bb) To hear and determine applications for an order relieving an estate from administration under section 2113.03 of the Revised Code;
(cc) To hear and determine applications for an order granting a summary release from administration under section 2113.031 of the Revised Code;
(dd) To hear and determine actions relating to the exercise of the right of disposition, in accordance with section 2108.90 of the Revised Code;
(ee) To hear and determine actions relating to the disinterment and reinterment of human remains under section 517.23 of the Revised Code.
(2) In addition to the exclusive jurisdiction conferred upon the probate court by division (A)(1) of this section, the probate court shall have exclusive jurisdiction over a particular subject matter if both of the following apply:
(a) Another section of the Revised Code expressly confers jurisdiction over that subject matter upon the probate court.
(b) No section of the Revised Code expressly confers jurisdiction over that subject matter upon any other court or agency.
(B)(1) The probate court has concurrent jurisdiction with, and the same powers at law and in equity as, the general division of the court of common pleas to issue writs and orders, and to hear and determine actions as follows:
(a) If jurisdiction relative to a particular subject matter is stated to be concurrent in a section of the Revised Code or has been construed by judicial decision to be concurrent, any action that involves that subject matter;
(b) Any action that involves an inter vivos trust; a trust created pursuant to section 5815.28 of the Revised Code; a charitable trust or foundation; subject to divisions (A)(1)(u) and (z) of this section, a power of attorney, including, but not limited to, a durable power of attorney; the medical treatment of a competent adult; or a writ of habeas corpus.
(2) Any action that involves a concurrent jurisdiction subject matter and that is before the probate court may be transferred by the probate court, on its order, to the general division of the court of common pleas.
(C) The probate court has plenary power at law and in equity to dispose fully of any matter that is properly before the court, unless the power is expressly otherwise limited or denied by a section of the Revised Code.
(D) The jurisdiction acquired by a probate court over a matter or proceeding is exclusive of that of any other probate court, except when otherwise provided by law.
Sec. 2101.27. (A) A probate judge has jurisdiction and authority to solemnize marriages within the county and may charge a fee for providing the service in accordance with division (B) of this section. The fee charged is subject to disposition in accordance with division (C) of this section.
(B)(1) If a probate judge intends to charge a fee for solemnizing any marriage in accordance with division (A) of this section, prior to doing so, the probate judge, by rule, shall establish a reasonable fee for providing the service.
(2) Division (B)(1) of this section does not do either of the following:
(a) Require a probate judge who, by rule, has established a
reasonable fee for solemnizing marriages to charge that fee for
every marriage that he the probate judge solemnizes;
(b) Affect specific fees to which the probate judge is entitled under section 2101.16 or any other section of the Revised Code for issuing marriage licenses, recording returns of solemnized marriages, providing certified abstracts of marriages, or performing any other task related to a marriage other than its solemnization.
(C) If, in accordance with division (B) of this section, a reasonable fee is charged by a probate judge for solemnizing any marriage, the probate judge shall not retain any portion of that fee and instead shall pay the entire fee into the county treasury. The county treasurer shall credit the fee to the general fund of the county.
Sec. 2101.30. Whenever a jury is required in the probate
court, the probate judge shall forthwith notify the commissioners
of jurors, who shall cause to be drawn from the jury wheel, or to
be drawn by use of the automation data processing equipment and
procedures described in section 2313.07 of the Revised Code, the
names of sixteen persons as jurymen jurypersons. Additional names
may be drawn if required. The clerk of the court of common pleas
or one of his the clerk's deputies shall make a list of such those
names in the order drawn and certify it the list to the probate
court, and such the court shall issue a venire commanding the
persons whose names were drawn to appear on the day and at the
hour set for trial. The probate court shall deliver the venire to
the sheriff, who shall serve it within five days thereafter of
delivery and make prompt return of such the service.
Sec. 2101.34. If the judges of the court of common pleas are
absent from the county or are under a disability, the probate
judge of the county may enter judgments by confession in cases
pending in the court of common pleas of
his the judge's county.
Sec. 2101.37. When the probate judge of any county is
absent, or is unable to attend court, or the volume of work in his
the judge's office necessitates it, he the judge may call upon a
judge of the court of common pleas having jurisdiction in said
that county to act in his the probate judge's place, or in
conjunction with
him the probate judge, or he the probate judge
may call upon the chief justice of the supreme court, who shall
designate a judge of the court of common pleas or a probate judge
to act in the place of such the absent or incapacitated probate
judge, or in conjunction with him the absent or incapacitated
probate judge. If the probate judge of any county dies or resigns
during his the judge's term of office, a judge of the court of
common pleas of said that county shall act in the place of said
the probate judge until his a successor is appointed and
qualified. When a judge of the court of common pleas or a probate
judge so designated resides outside the county in which he the
designated judge is called upon to act, he
the designated judge
shall receive such the compensation as that is provided for judges
of the court of common pleas designated by the chief justice to
hold court outside their respective counties. The record of such
the cases shall be made and preserved in the proper records of the
probate court by the deputy clerk thereof of the probate court.
Sec. 2101.38. Letters testamentary, of administration, or of
guardianship shall not be issued to a person after his the
person's election to the office of probate judge and before the
expiration of his the person's term. If a probate judge is
interested, as heir, legatee, devisee, or other manner in an
estate which that would otherwise be settled in the probate court
of the county where he the judge resides, such the estate, and all
of the accounts of guardians in which the judge is interested,
shall be settled by the court of common pleas of the county. In
such those matters and cases in which the judge is interested, the
judge shall certify the original papers shall be by him forthwith
certified to the court of common pleas. In other matters and
proceedings in a probate court in which the judge thereof of the
probate court is interested or in which he the judge is required
to be a witness to a will,
such the judge shall, upon the motion
of a party interested in the proceedings, or upon his the judge's
own motion, certify the matters and proceedings to the court of
common pleas and forthwith file with the clerk of the court of
common pleas all original papers connected therewith with those
matters and proceedings.
When a matter or proceeding is so certified, a judge of the
court of common pleas, at chambers, by a judge thereof, or in open
court shall hear and determine it the matter or proceeding in
chambers or in open court as though such the court had original
jurisdiction of the subject matter. Upon final decision of the
questions involved in such the matter or proceedings, the final
settlement of the estate in which the judge is interested as
executor, administrator, or guardian, or when his the judge's
interest
therein in the estate ceases, the clerk shall deliver the
original papers to the probate court from which they came in which
the original papers were filed and make and file therein in that
court an authenticated transcript of the orders, judgments, and
proceedings of the court of common pleas. Thereupon the The
probate judge shall record such the orders, judgments, and
proceedings in the proper records.
Sec. 2101.41. No probate judge shall practice law, be
associated with another as partner in the practice of law in a
court or tribunal of this state, prepare a complaint or answer,
make out an account required for the settlement of an estate
committed to the care or management of another, or appear as
attorney before a court or judicial tribunal. Whoever violates
this section shall forfeit his the office of probate judge.
The deputy clerk of a probate court may engage in the
practice of law if his the deputy's practice is not related in any
way to probate law or practice. The deputy may engage in the
practice of law only with the continued consent and approval of
all of the judges of the probate court.
A referee magistrate appointed solely to conduct hearings
under Chapters 5122. and 5123. of the Revised Code may engage in
the practice of law, including probate law, except that he the
magistrate shall not practice law under these those chapters other
than as a referee magistrate and shall not knowingly accept any
business arising out of or otherwise connected with a proceeding
in which he the magistrate served as a
referee magistrate under
these those chapters.
The prosecuting attorney shall file his the prosecuting
attorney's information against a judge or deputy clerk who
practices law in violation of this section in the court of common
pleas, and proceed as upon indictment.
This section does not prevent a probate judge or deputy clerk
from finishing business commenced by him the judge or deputy clerk
prior to his the judge's or clerk's election or appointment,
provided it is not connected with his the official duty duties of
the judge or clerk.
Sec. 2101.43. Whenever ten per cent of the number of
electors voting for governor at the most recent election in any
county having less than sixty thousand population, as determined
by the most recent federal census, petition a judge of the court
of common pleas of such the county, not less than ninety days
before any general election for county officers, for the
submission to the electors of such the county the question of
combining the probate court with the court of common pleas, such
the judge shall place upon the journal of said the court an order
requiring the sheriff to make proclamation that at the next
general election there will be submitted to the electors the
question of combining the probate court with the court of common
pleas. The clerk of the court of common pleas shall, thereupon,
make and deliver a certified copy of such the order to the
sheriff, and the sheriff shall include notice of the submission of
such the question in the sheriff's proclamation of election for
the next general election.
Each elector joining in a petition for the submission of said
the question of combining the probate court with the court of
common pleas shall sign such the petition in the elector's own
handwriting, unless the elector cannot write and the elector's
signature is made by mark, and shall add thereto include in the
petition the township, precinct, or ward of which the elector is a
resident. Such The petition may consist of as many parts as are
convenient. One of the signers to each separate paper shall swear
before some an officer who is qualified to administer the oath
that the petition is bona fide to the best of the signer's
knowledge and belief. Such The oath shall be a part of or attached
to such the paper. The judge upon receipt of
such the petition
shall deposit it with the clerk of the court of common pleas.
No signature shall be taken from or added to such the
petition after it has been filed with the judge. When deposited
such the petition shall be preserved and open to public
inspection, and, if it is in conformity with this section, it
shall be valid, unless an objection thereto to the petition is
made in writing by an elector of the county within five days after
the filing thereof of the petition. Such The objections, or any
other questions arising in the course of the submission of the
question of combining said courts the probate court with the court
of common pleas, shall be considered and determined by the judge,
and the judge's decision shall be final.
Sec. 2103.01. In As used in sections 2103.01 to 2103.09,
inclusive, of the Revised Code, unless the context shows that
another sense was is intended, "property" includes
lands,
tenements, hereditaments real property, and money, chattels,
choses in action, and evidences of debt, and other personal
property.
Sec. 2105.051. When a person dies, property that he the
person gave during his the person's lifetime to an heir shall be
treated as an advancement against the heir's share of the estate
only if declared in a contemporaneous writing by the decedent, or
acknowledged in writing by the heir to be an advancement. For this
purpose, property advanced is valued as of the time the heir came
into possession or enjoyment of the property, or as of the time of
death of the decedent, whichever occurs first. If the heir does
not survive the decedent, the property shall not be taken into
account in computing the intestate share to be received by the
heir's issue, unless the declaration or acknowledgment provides
otherwise.
Sec. 2105.06. When a person dies intestate having title or
right to any personal property, or to any real estate property or
inheritance, in this state, the personal property shall be
distributed, and the real estate property or inheritance shall
descend and pass in parcenary, except as otherwise provided by
law, in the following course:
(A) If there is no surviving spouse, to the children of the intestate or their lineal descendants, per stirpes;
(B) If there is a spouse and one or more children of the decedent or their lineal descendants surviving, and all of the decedent's children who survive or have lineal descendants surviving also are children of the surviving spouse, then the whole to the surviving spouse;
(C) If there is a spouse and one child of the decedent or the child's lineal descendants surviving and the surviving spouse is not the natural or adoptive parent of the decedent's child, the first twenty thousand dollars plus one-half of the balance of the intestate estate to the spouse and the remainder to the child or the child's lineal descendants, per stirpes;
(D) If there is a spouse and more than one child or their lineal descendants surviving, the first sixty thousand dollars if the spouse is the natural or adoptive parent of one, but not all, of the children, or the first twenty thousand dollars if the spouse is the natural or adoptive parent of none of the children, plus one-third of the balance of the intestate estate to the spouse and the remainder to the children equally, or to the lineal descendants of any deceased child, per stirpes;
(E) If there are no children or their lineal descendants, then the whole to the surviving spouse;
(F) If there is no spouse and no children or their lineal descendants, to the parents of the intestate equally, or to the surviving parent;
(G) If there is no spouse, no children or their lineal descendants, and no parent surviving, to the brothers and sisters, whether of the whole or of the half blood of the intestate, or their lineal descendants, per stirpes;
(H) If there are no brothers or sisters or their lineal descendants, one-half to the paternal grandparents of the intestate equally, or to the survivor of them, and one-half to the maternal grandparents of the intestate equally, or to the survivor of them;
(I) If there is no paternal grandparent or no maternal
grandparent, one-half to the lineal descendants of the deceased
grandparents, per stirpes; if there are no such lineal
descendants, then to the surviving grandparents or their lineal
descendants, per stirpes; if there are no surviving grandparents
or their lineal descendants, then to the next of kin of the
intestate, provided there shall be no representation among such
the next of kin;
(J) If there are no next of kin, to stepchildren or their lineal descendants, per stirpes;
(K) If there are no stepchildren or their lineal descendants, escheat to the state.
Sec. 2105.10. (A) As used in this section:
(1) "Abandoned" means that a parent of a minor failed without
justifiable cause to communicate with the minor, care for
him the
minor, and provide for his the minor's maintenance or support as
required by law or judicial decree for a period of at least one
year immediately prior to the date of the death of the minor.
(2) "Minor" means a person who is less than eighteen years of age.
(B) Subject to divisions (C), (D), and (E) of this section, a
parent who has abandoned his the parent's minor child who
subsequently dies intestate as a minor shall not inherit the real
or personal property of the deceased child pursuant to section
2105.06 of the Revised Code. If a parent is prohibited by this
division from inheriting from his the parent's deceased child, the
real or personal property of the deceased child shall be
distributed, or shall descend and pass in parcenary, pursuant to
section 2105.06 of the Revised Code as if the parent had
predeceased the deceased child.
(C) Subject to divisions (D) and (E) of this section, a parent who is alleged to have abandoned a child who died as an intestate minor shall be considered as a next of kin or an heir at law of the deceased child only for the following purposes:
(1) To receive any notice required to be given to the heirs at law of a decedent in connection with an application for release of an estate from administration under section 2113.03 of the Revised Code;
(2) To be named as a next of kin in an application for the appointment of a person as the administrator of the estate of the deceased child, if the parent is known to the person filing the application pursuant to section 2113.07 of the Revised Code, and to receive a citation issued by the probate court pursuant to that section.
(D)(1) The prohibition against inheritance set forth in division (B) of this section shall be enforceable only in accordance with a probate court adjudication rendered pursuant to this division.
(2) If the administrator of the estate of an intestate minor has actual knowledge, or reasonable cause to believe, that the minor was abandoned by a parent, the administrator shall file a petition pursuant to section 2123.02 of the Revised Code to obtain an adjudication that the parent abandoned the child and that, because of the prohibition against inheritance set forth in division (B) of this section, the parent shall not be considered to be an heir at law of, and shall not be entitled to inherit the real and personal property of, the deceased child pursuant to section 2105.06 of the Revised Code. That parent shall be named as a defendant in the petition and, whether or not that parent is a resident of this state, shall be served with a summons and a copy of the petition in accordance with the Rules of Civil Procedure. In the heirship determination proceeding, the administrator has the burden of proving, by a preponderance of the evidence, that the parent abandoned the child. If, after the hearing, the probate court finds that the administrator has sustained that burden of proof, the probate court shall include in its adjudication described in section 2123.05 of the Revised Code its findings that the parent abandoned the child and, because of the prohibition against inheritance set forth in division (B) of this section, the parent shall not be considered to be an heir at law of, and shall not be entitled to inherit the real and personal property of, the deceased child pursuant to section 2105.06 of the Revised Code. If the probate court so finds, then, upon the entry of its adjudication on its journal, the administrator may make a final distribution of the estate of the deceased child in accordance with division (B) of this section.
(3) An heirship determination proceeding resulting from the filing of a petition pursuant to this division shall be conducted in accordance with Chapter 2123. of the Revised Code, except to the extent that a provision of this section conflicts with a provision of that chapter, in which case the provision of this section shall control.
(E) If the administrator of the estate of an intestate minor
has not commenced an heirship determination proceeding as
described in division (D) of this section within four months from
the date that he the administrator receives his the
administrator's letters of administration, then
such a that
proceeding may not be commenced subsequently, no parent of the
deceased child shall be prohibited from inheriting the real or
personal property of the deceased child pursuant to division (B)
of this section, and the probate of the estate of the deceased
child in accordance with section 2105.06 and other relevant
sections of the Revised Code shall be forever binding.
Sec. 2105.11. When a person dies intestate leaving children
and none of the children of such the intestate have died leaving
children or their lineal descendants, such the estate shall
descend to the children of such the intestate, living at the time
of his the intestate's death, in equal proportions.
Sec. 2105.13. If some of the children of an intestate are
living and others are dead, the estate shall descend to the
children who are living and to the lineal descendants of such the
children as who are dead, so that each child who is living will
inherit the share to which he the child who is living would have
been entitled if all the children of the intestate were living,
and the lineal descendants of the deceased child will inherit
equal parts of that portion of the estate to which
such the
deceased child would be entitled if he the deceased child were
living.
This section shall apply in all cases in which the descendants of the intestate, not more remote than lineal descendants of grandparents, entitled to share in the estate, are of unequal degree of consanguinity to the intestate, so that those who are of the nearest degree of consanguinity will take the share to which they would have been entitled, had all the descendants in the same degree of consanguinity with them who died leaving issue, been living.
Sec. 2105.14. Descendants of an intestate begotten before
his the intestate's death, but born
thereafter after the
intestate's death, in all cases will inherit as if born in the
lifetime of the intestate and surviving him the intestate; but in
no other case can a person inherit unless living at the time of
the death of the intestate.
Sec. 2105.15. A person of sound mind and memory may appear
before the probate judge of his the person's county and in the
presence of such the judge and two disinterested persons of such
that person's acquaintance, file a written declaration declaring
that, as his the person's free and voluntary act, he
the person
did designate and appoint another, stating the name and place of
residence of such the other person specifically, to stand toward
him the person in the relation of an heir at law in the event of
his the person's death. Such The declaration must shall be
attested by the two disinterested persons and subscribed by the
declarant. If satisfied that such the declarant is of sound mind
and memory and free from restraint, the judge thereupon shall
enter that fact upon
his the judge's journal and make a complete
record of such the proceedings. Thenceforward From then on the
person designated will stand in the same relation, for all
purposes, to such the declarant as he the person designated could
if a child born in lawful wedlock. The rules of inheritance will
be the same between him the person designated and the relations by
blood of the declarant, as if so born. A certified copy of such
the record will be prima-facie evidence of the fact stated therein
in the record, and conclusive evidence, unless impeached for
actual fraud or undue influence. After a lapse of one year from
the date of such the designation, such the declarant may have such
the designation vacated or changed by filing in said that probate
court an application to vacate or change
such the designation of
heir; provided, that there is compliance with the procedure,
conditions, and prerequisites required in the making of the
original declaration.
Sec. 2105.16. No person who is capable of inheriting shall
be deprived of the inheritance by reason of any of his the
person's ancestors having been aliens. Aliens may hold, possess,
and enjoy lands, tenements, and hereditaments real property within
this state, either by descent, devise, gift, or purchase, as fully
as any citizen of the United States or of this state may do.
Sec. 2105.19. (A) Except as provided in division (C) of this section, no person who is convicted of, pleads guilty to, or is found not guilty by reason of insanity of a violation of or complicity in the violation of section 2903.01, 2903.02, or 2903.03 of the Revised Code or of an existing or former law of any other state, the United States, or a foreign nation, substantially equivalent to a violation of or complicity in the violation of any of these sections, no person who is indicted for a violation of or complicity in the violation of any of those sections or laws and subsequently is adjudicated incompetent to stand trial on that charge, and no juvenile who is found to be a delinquent child by reason of committing an act that, if committed by an adult, would be a violation of or complicity in the violation of any of those sections or laws, shall in any way benefit by the death. All property of the decedent, and all money, insurance proceeds, or other property or benefits payable or distributable in respect of the decedent's death, shall pass or be paid or distributed as if the person who caused the death of the decedent had predeceased the decedent.
(B) A person prohibited by division (A) of this section from
benefiting by the death of another is a constructive trustee for
the benefit of those entitled to any property or benefit that the
person has obtained, or over which he the person has exerted
control, because of the decedent's death. A person who purchases
any such property or benefit from the constructive trustee, for
value, in good faith, and without notice of the constructive
trustee's disability under division (A) of this section, acquires
good title, but the constructive trustee is accountable to the
beneficiaries for the proceeds or value of the property or
benefit.
(C) A person who is prohibited from benefiting from a death
pursuant to division (A) of this section either because he the
person was adjudicated incompetent to stand trial or was found not
guilty by reason of insanity, or his the person's guardian
appointed pursuant to Chapter 2111. of the Revised Code or other
legal representative, may file a complaint to declare his the
person's right to benefit from the death in the probate court in
which the decedent's estate is being administered or which that
released the estate from administration. The complaint shall be
filed no later than sixty days after the person is adjudicated
incompetent to stand trial or found not guilty by reason of
insanity. The court shall notify each person who is a devisee or
legatee under the decedent's will, or if there is no will, each
person who is an heir of the decedent pursuant to section 2105.06
of the Revised Code that such a complaint of that nature has been
filed within ten days after the filing of such a the complaint.
The person who files the
motion complaint, and each person who is
required to be notified of the filing of the motion complaint
under this division, is entitled to a jury trial in the action. To
assert the right, the person desiring a jury trial shall demand a
jury in the manner prescribed in the Civil Rules.
A person who files a complaint pursuant to this division
shall be restored to his the person's right to benefit from the
death unless the court determines, by a preponderance of the
evidence, that the person would have been convicted of a violation
of, or complicity in the violation of, section 2903.01, 2903.02,
or 2903.03 of the Revised Code, or of a law of another state, the
United States, or a foreign nation that is substantially similar
to any of those sections, if he the person had been brought to
trial in the case in which he the person was adjudicated
incompetent or if
he the person were not insane at the time of the
commission of the offense.
Sec. 2106.01. (A) After the initial appointment of an administrator or executor of the estate, the probate court shall issue a citation to the surviving spouse, if any is living at the time of the issuance of the citation, to elect whether to exercise the surviving spouse's rights under Chapter 2106. of the Revised Code, including, after the probate of a will, the right to elect to take under the will or under section 2105.06 of the Revised Code.
A surviving spouse may waive the service of the citation required under this division by filing in the probate court a written waiver of the citation. The waiver shall include an acknowledgment of receipt of the description of the general rights of the surviving spouse required by division (B) of section 2106.02 of the Revised Code.
(B) If the surviving spouse elects to take under section 2105.06 of the Revised Code and if the value of the property that the surviving spouse is entitled to receive is equal to or greater than the value of the decedent's interest in the mansion house as determined under section 2106.10 of the Revised Code, the surviving spouse also is entitled to make an election pursuant to division (A) of section 2106.10 of the Revised Code.
(C) If the surviving spouse elects to take under section 2105.06 of the Revised Code, the surviving spouse shall take not to exceed one-half of the net estate, unless two or more of the decedent's children or their lineal descendants survive, in which case the surviving spouse shall take not to exceed one-third of the net estate.
For purposes of this division, the net estate shall be determined before payment of federal estate tax, estate taxes under Chapter 5731. of the Revised Code, or any other tax that is subject to apportionment under section 2113.86 or 2113.861 of the Revised Code.
(D) Unless the will expressly provides that in case of an
election under division (A) of this section there shall be no
acceleration of remainder or other interests bequeathed or devised
by the will, the balance of the net estate shall be disposed of as
though the surviving spouse had predeceased the testator. If there
is a disposition by a will to an inter vivos trust that was
created by the testator, if under the terms of the trust the
surviving spouse is entitled to any interest in the trust or is
granted any power or nomination with respect to the trust, and if
the surviving spouse makes an election to take under section
2105.06 of the Revised Code, then, unless the trust instrument
provides otherwise, the surviving spouse is deemed considered for
purposes of the trust to have predeceased the testator, and there
shall be an acceleration of remainder or other interests in all
property bequeathed or devised to the trust by the will, in all
property held by the trustee at the time of the death of the
decedent, and in all property that comes into the hands possession
or under the control of the trustee by reason of the death of the
decedent.
(E) The election of a surviving spouse to take under a will or under section 2105.06 of the Revised Code may be made at any time after the death of the decedent, but the surviving spouse shall not make the election later than five months from the date of the initial appointment of an administrator or executor of the estate. On a motion filed before the expiration of the five-month period, and for good cause shown, the court may allow further time for the making of the election. If no action is taken by the surviving spouse before the expiration of the five-month period, it is conclusively presumed that the surviving spouse elects to take under the will. The election shall be entered on the journal of the court.
When proceedings for advice or to contest the validity of a will are begun within the time allowed by this division for making the election, the election may be made within three months after the final disposition of the proceedings, if the will is not set aside.
(F) When a surviving spouse succeeds to the entire estate of the testator, having been named the sole devisee and legatee, it shall be presumed that the spouse elects to take under the will of the testator, unless the surviving spouse manifests a contrary intention.
Sec. 2106.08. If, because of a legal disability, a surviving spouse is unable to make an election as provided by section 2106.01 of the Revised Code, as soon as the facts come to the knowledge of the probate court, the probate court shall appoint some suitable person to ascertain the value of the provision made for the surviving spouse by the testator, the value of the rights of the surviving spouse in the estate of the testator under Chapter 2105. of the Revised Code, and the adequate support needs of the surviving spouse after taking into consideration the other available resources and the age, probable life expectancy, physical and mental condition, and present and reasonably anticipated future needs of the surviving spouse. The appointment by the court shall be made at any time within the times described in division (E) of section 2106.01 of the Revised Code for making an election under that section.
When the person so appointed returns the report of his the
person's investigation, the court may elect for the surviving
spouse to take under section 2105.06 of the Revised Code only if
it finds, after taking into consideration the other available
resources and the age, probable life expectancy, physical and
mental condition, and present and reasonably anticipated future
needs of the surviving spouse, that the election to take under
section 2105.06 of the Revised Code is necessary to provide
adequate support for the surviving spouse during his the surviving
spouse's life expectancy.
After making its determination under this section, the court shall record upon its journal the election made for the surviving spouse. The election, when so entered, shall have the same effect as an election made by one not under legal disability.
Sec. 2106.11. Subject to the right of the surviving spouse to elect to receive the decedent's interest in the mansion house pursuant to section 2106.10 of the Revised Code, the specific monetary share payable to a surviving spouse under division (B), (C), or (D) of section 2105.06 of the Revised Code shall be paid out of the tangible and intangible personal property in the intestate estate to the extent that the personal property is available for distribution. The personal property distributed to the surviving spouse, other than cash, shall be valued at the appraised value.
Before tangible and intangible personal property is
transferred to the surviving spouse in payment or part payment of
the specific monetary share, the administrator or executor shall
file an application that includes an inventory of the personal
property intended to be distributed in kind to the surviving
spouse, together with a statement of the appraised value of each
item of personal property included. The court shall examine the
application and make a finding of the amount of personal property
to be distributed to the surviving spouse, and shall order that
the personal property be distributed to the surviving spouse. The
court concurrently shall make a finding of the amount of money
that remains due and payable to the surviving spouse in
satisfaction of the specific monetary share to which the surviving
spouse is entitled under division (B), (C), or (D) of section
2105.06 of the Revised Code. Any amount that remains due and
payable shall be a charge on the title to any real property in the
estate but the charge does not bear interest. This charge may be
conveyed or released in the same manner as any other interest in
real estate property and may be enforced by foreclosure or any
other appropriate remedy.
Sec. 2107.01. In As used in Chapters 2101. to 2131. of the
Revised Code, "will:
(A) "Will" includes codicils to wills admitted to probate, lost, spoliated, or destroyed wills, and instruments admitted to probate under section 2107.081 of the Revised Code, but "will" does not include inter vivos trusts or other instruments that have not been admitted to probate.
(B) "Testator" means any person who makes a will.
Sec. 2107.02. A person of the age of who is eighteen years,
of age or over older, of sound mind and memory, and not under
restraint may make a will.
Sec. 2107.03. Except oral wills, every last will and
testament shall be in writing, but may be handwritten or
typewritten. The will shall be signed at the end by the testator
making it or by some other person in the testator's conscious
presence and at the testator's express direction, and. The will
shall be attested and subscribed in the conscious presence of the
testator, by two or more competent witnesses, who saw the testator
subscribe, or heard the testator acknowledge the testator's
signature.
For purposes of this section, "conscious presence" means within the range of any of the testator's senses, excluding the sense of sight or sound that is sensed by telephonic, electronic, or other distant communication.
Sec. 2107.04. No agreement to make a will or to make a
devise or bequest by will shall be enforceable unless it is in
writing. Such The agreement must shall be signed by the maker or
by some other person at such the maker's express direction. If
signed by a person other than such the maker, the instrument must
shall be subscribed by two or more competent witnesses who heard
such the maker acknowledge that it was signed at his the maker's
direction.
Sec. 2107.05. An existing document, book, record, or
memorandum may be incorporated in a will by reference, if referred
to as being in existence at the time the will is executed. Such
That document, book, record, or memorandum shall be deposited in
the probate court when the will is probated or within thirty days
thereafter after the will is probated, unless the court grants an
extension of time for good cause shown. A copy may be substituted
for the original document, book, record, or memorandum if such the
copy is certified to be correct by a person authorized to take
acknowledgments on deeds.
Sec. 2107.07. A will may be deposited by the maker testator,
or by some person for the maker testator, in the office of the
judge of the probate court in the county in which the testator
lives. Such That will shall be safely kept until delivered or
disposed of as provided by section 2107.08 of the Revised Code.
The judge, on being paid the fee of one dollar five dollars, shall
receive, keep, and give a certificate of deposit for such the
will.
Every will which that is to be so deposited shall be enclosed
in a sealed wrapper, which envelope that shall be indorsed with
the name of the testator. The judge shall indorse thereon on the
envelope the date of delivery and the person by whom such the will
was delivered. The wrapper envelope may be indorsed with the name
of a person to whom it is to be delivered after the death of the
testator. Such The will shall not be opened or read until
delivered to a person entitled to receive it, until the maker
petitions testator files a complaint in the probate court for a
declaratory judgment of the validity of the will pursuant to
section 2107.081 of the Revised Code, or until otherwise disposed
of as provided in section 2107.08 of the Revised Code.
Sec. 2107.08. During the lifetime of a testator, the
testator's will, deposited according to section 2107.07 of the
Revised Code, shall be delivered only to him the testator, to some
person authorized by him the testator by a written order, or to a
probate court for a determination of its validity when the
testator so requests. After the testator's death, the will shall
be delivered to the person named in the indorsement on the wrapper
envelope of the will, if there is a person named who demands it.
If the testator has
petitioned filed a complaint in the probate
court for a judgment declaring the validity of the will pursuant
to section 2107.081 of the Revised Code and the court has rendered
the judgment, the probate judge with possession shall deliver the
will to the proper probate court as determined under section
2107.11 of the Revised Code, upon the death of the testator, for
probate.
If no person named in the indorsement demands the will and it
is not one that has been declared valid pursuant to section
2107.084 of the Revised Code, it shall be publicly opened in the
probate court within two months one month after notice of the
testator's death and retained in the office of the probate judge
until offered for probate. If the jurisdiction belongs to any
other probate court, the will shall be delivered to the person
entitled to its custody, to be presented for probate in the other
court. If the probate judge who opens the will has jurisdiction of
it,
he the probate judge immediately shall give notice of its
existence to the executor named in the will or, if any, to the
persons holding a power to nominate an executor as described in
section 2107.65 of the Revised Code, or, if it is the case, to the
executor named in the will and to the persons holding a power to
nominate a coexecutor as described in that section. If no executor
is named and no persons hold a power to nominate an executor as
described in that section, the probate judge shall give notice to
other persons immediately interested.
Sec. 2107.081. (A) A person who executes a will allegedly in
conformity with the laws of this state may petition file a
complaint in the probate court of the county in which he the
person is domiciled, if he the person is domiciled in this state,
or in the probate court of the county in which any of his the
person's real property is located, if
he the person is not
domiciled in this state, for a judgment declaring the validity of
the will.
The petition complaint may be filed in the form determined by
the probate court of the county in which it is filed.
The petition complaint shall name as parties defendant all
persons named in the will as beneficiaries, and all of the persons
who would be entitled to inherit from the testator under Chapter
2105. of the Revised Code had the testator died intestate on the
date the petition complaint was filed.
For the purposes of this section, "domicile" shall be
determined at the time of filing the petition complaint with the
probate court.
(B) The failure of a testator to file a petition complaint
for a judgment declaring the validity of a will he the testator
has executed shall not be construed as evidence or an admission
that the will was not properly executed pursuant to section
2107.03 of the Revised Code or any prior law of this state in
effect at the time of execution or as evidence or an admission
that the testator did not have the requisite testamentary capacity
and freedom from undue influence under section 2107.02 of the
Revised Code or was under any restraint.
Sec. 2107.082. Service of process in an action authorized by
section 2107.081 of the Revised Code shall be made on every party
defendant named in that action the complaint filed under that
section by the following methods:
(A) By certified mail, or any other valid personal service permitted by the Rules of Civil Procedure, if the party is an inhabitant of this state or is found within this state;
(B) By certified mail, with a copy of the summons and
petition complaint, to the party at his the party's last known
address or any other valid personal service permitted by the Rules
of Civil Procedure, if the party is not an inhabitant of this
state or is not found within this state;
(C) By publication, according to Civil Rule 4.4, in a
newspaper of general circulation published in the county where the
petition complaint was filed, for three consecutive weeks, if the
address of the party is unknown, if all methods of personal
service permitted under division (B) of this section were
attempted without success, or if the interest of the party under
the will or in the estate of the testator should the will be
declared invalid is unascertainable at that time.
Sec. 2107.083. When a petition complaint is filed pursuant
to section 2107.081 of the Revised Code, the probate court shall
conduct a hearing on the validity of the will. The hearing shall
be adversary in nature and shall be conducted pursuant to section
2721.10 of the Revised Code, except as otherwise provided in
sections 2107.081 to 2107.085 of the Revised Code.
Sec. 2107.084. (A) The probate court shall declare the will
valid if, after conducting a proper hearing pursuant to section
2107.083 of the Revised Code, it finds that the will was properly
executed pursuant to section 2107.03 of the Revised Code or under
any prior law of this state that was in effect at the time of
execution and that the testator had the requisite testamentary
capacity and freedom from undue influence pursuant to section
2107.02 of the Revised Code was not under any restraint.
Any such judgment under this section declaring a will valid
is binding in this state as to the validity of the will on all
facts found, unless provided otherwise in this section, section
2107.33 of the Revised Code, or division (B) of section 2107.71 of
the Revised Code, and, if the will remains valid, shall give the
will full legal effect as the instrument of disposition of the
testator's estate, unless the will has been modified or revoked
according to law.
(B) Any declaration of validity issued as a judgment pursuant
to this section shall be sealed in an envelope along with the will
to which it pertains, and filed by the probate judge or his
designated officer the probate judge's designee in the offices of
that probate court. The filed will shall be available during the
testator's lifetime only to the testator. If the testator removes
a filed will from the possession of the probate judge, the
declaration of validity rendered under division (A) of this
section no longer has any effect.
(C) A testator may revoke or modify a will declared valid and
filed with a probate court pursuant to this section by
petitioning
filing a complaint in the probate court in possession of the will
and asking that the will be revoked or modified. The petition
complaint shall include a document executed pursuant to sections
2107.02 and 2107.03 of the Revised Code, and shall name as parties
defendant those persons who were parties defendant in any previous
action declaring the will valid, those persons who are named in
any modification as beneficiaries, and those persons who would be
entitled because of the revocation or modification, to inherit
from the testator under Chapter 2105. of the Revised Code had the
testator died intestate on the date the petition complaint was
filed. Service of the petition complaint and process shall be made
on these parties by the methods authorized in section 2107.082 of
the Revised Code.
Unless waived by all parties, the court shall conduct a
hearing on the validity of the revocation or modification
requested under this division in the same manner as it would on
any initial petition complaint for a judgment declaring a will to
be valid under this section. If the court finds that the
revocation or modification is valid, as defined under the
procedure described in division (A) of this section, the
revocation or modification shall take full effect and be binding,
and shall revoke the will or modify it to the extent of the valid
modification. The revocation or modification, the judgment
declaring it valid, and the will itself shall be sealed in an
envelope and filed with the probate court, and shall be available
during the testator's lifetime only to the testator.
(D) A testator may also modify a will by any later will or
that has been declared valid under division (A) of this section
and is in the possession of the probate judge may be modified by
codicil executed according to the laws of this state or any other
state and if the codicil is declared valid by the same procedure
as the will. A testator may revoke a will by any method permitted
under section 2107.33 of the Revised Code.
(E) A declaration of validity of a will, or of a codicil to a
will previously declared valid, or of a revocation or modification
of a will previously determined to be valid, that is given under
division (A) or (C) of this section, whichever is applicable, is
not subject to collateral attack, except by a person and in the
manner specified in division (B) of section 2107.71 of the Revised
Code, but is appealable subject to the terms of Chapter 2721. of
the Revised Code.
Sec. 2107.085. The finding of facts by a probate court in a proceeding brought under sections 2107.081 to 2107.085 of the Revised Code is not admissible as evidence in any proceeding other than one brought to determine the validity of a will.
The determination or judgment rendered in a proceeding under
these those sections is not binding upon the parties to such a
that proceeding in any action not brought to determine the
validity of a will.
The failure of a testator to file a petition complaint for a
judgment declaring the validity of a will he the testator has
executed is not admissible as evidence in any proceeding to
determine the validity of that will or any other will executed by
the testator.
Sec. 2107.09. (A) If real or personal estate property is
devised or personal property is bequeathed by a last will, the
executor, or any interested person, may cause such the will to be
brought before the probate court of the county in which the
decedent was domiciled. By
citation, attachment, or warrant or, if
circumstances require it, by warrant or attachment in the first
instance judicial order, such the court may compel the person
having the custody or control of such the will to produce it
before the court for the purpose of being proved.
If the person having the custody or control of the will
intentionally conceals or withholds it or neglects or refuses to
produce it for probate without reasonable cause, he the person may
be committed to the county jail and kept in close custody until he
produces the will is produced. This The person also shall be
liable to any party aggrieved for the damages sustained by such
that neglect or refusal.
Any citation, attachment, or warrant judicial order issued
pursuant to this section may be issued into any county in the
state and shall be served and returned by the officer to whom it
is delivered.
The officer to whom such the process is delivered shall be
liable for neglect in its service or return in like the same
manner as sheriffs are liable for neglect in not serving or
returning a capias issued upon an indictment.
(B) In the case of a will that has been declared valid pursuant to section 2107.084 of the Revised Code, the probate judge who made the declaration or who has possession of the will shall cause the will and the judgment declaring validity to be brought before the proper probate court as determined by section 2107.11 of the Revised Code at a time after the death of the testator. If the death of the testator is brought to the attention of the probate judge by an interested party, the judge shall cause the will to be brought before the proper probate court at that time.
Sec. 2107.10. (A) No property or right, testate or
intestate, shall pass to a beneficiary named in a will who knows
of the existence of the will for three years one year after the
death of the testator and has the power to control it, and,
without reasonable cause, intentionally conceals or withholds it
or neglects or refuses within the three years that one year to
cause it to be offered for or admitted to probate. The estate
property devised or bequeathed to such devisee that beneficiary
shall descend to the heirs of the testator, not including any heir
who has concealed or withheld the will.
(B) No property or right, testate or intestate, passes to a
beneficiary named in a will when the will was declared valid and
filed with a probate judge pursuant to section 2107.084 of the
Revised Code, the declaration and filing took place in a county
different from the county in which the will of the testator would
be probated under section 2107.11 of the Revised Code, and the
named beneficiary knew of the declaration and filing and of the
death of the testator and did not notify the probate judge with
whom the will was filed. This division does not preclude a named
beneficiary from acquiring property or rights from the estate of
the testator for failing to notify a probate judge if it is his
reasonable belief the named beneficiary reasonably believes that
the judge has previously been notified of the testator's death.
Sec. 2107.11. (A) A will shall be admitted to probate:
(A)(1) In the county in this state in which the testator was
domiciled if, at the time of
his the testator's death, he was
domiciled in this state;
(B)(2) In any county of this state where any real property or
personal property of such the testator is located if, at the time
of
his the testator's death, he the testator was not domiciled in
this state, and provided that such the will has not previously
been admitted to probate in this state or in the state of such the
testator's domicile;
(C)(3) In the county of this state in which a probate court
rendered a judgment declaring that the will was valid and where in
which the will was filed with the probate court.
(B) For the purpose of division (A)(2) of this section,
intangible personal property is located in the place where the
instrument evidencing a debt, obligation, stock, or chose in
action is located or if there is no such instrument of that nature
where the debtor resides.
Sec. 2107.15. If a devise or bequest is made to a person who
is one of only two witnesses to a will, the devise or bequest is
void. The witness shall then be competent to testify to the
execution of the will, as if the devise or bequest had not been
made. If the witness would have been entitled to a share of the
testator's estate in case the will was not established, he
the
witness takes so much of that share that does not exceed the
bequest or devise to him
the witness. The devisees and legatees
shall contribute for that purpose as for an absent or afterborn
child under section 2107.34 of the Revised Code.
Sec. 2107.17. When a witness to a will, or other witness
competent to testify at a probate or declaratory judgment
proceeding, resides out of its jurisdiction, or resides within it
but is infirm and unable to attend court, the probate court may
issue a commission with the will annexed directed to any suitable
person. In lieu of the original will, the probate court, in its
discretion, may annex to the commission a photocopy of the will or
a copy of the will made by photostatic or any similar process. The
person to whom the commission is directed shall take the
deposition or authorize the taking of the deposition of the
witness as provided by the Rules of Civil Procedure. The
testimony, certified and returned, shall be admissible and have
the same effect in the proceedings as if taken in open court.
Sec. 2107.18. The probate court shall admit a will to
probate if it appears from the face of the will, or if the probate
court requires, in its discretion, the testimony of the witnesses
to a will and it appears from that testimony, that the execution
of the will complies with the law in force at the time of the
execution of the will in the jurisdiction in which it was
executed, or with the law in force in this state at the time of
the death of the testator, or with the law in force in the
jurisdiction in which the testator was domiciled at the time of
his the testator's death.
The probate court shall admit a will to probate when there has been a prior judgment by a probate court declaring that the will is valid, rendered pursuant to section 2107.084 of the Revised Code, if the will has not been removed from the possession of the probate judge and has not been modified or revoked under division (C) or (D) of section 2107.084 of the Revised Code.
Sec. 2107.20. When admitted to probate every will shall be
filed in the office of the probate judge and recorded, together
with any testimony or prior judgment of a probate court declaring
the will valid, by him the judge or the clerk of the probate court
in a book to be kept for that purpose.
A copy of such the recorded will, with a copy of the order of
probate annexed
thereto to the copy of the recorded will,
certified by the judge under seal of his the judge's court, shall
be as effectual in all cases as the original would be, if
established by proof.
Sec. 2107.21. If real estate property devised by will is
situated in any county other than that in which the will is
proved, declared valid, or admitted to probate, an authenticated
copy of the will and the order of probate or the judgment
declaring validity shall be admitted to the record in the office
of the probate judge of each county in which such the real estate
property is situated upon the order of such that judge. The
authenticated copy shall have the same validity
therein in the
county in which the real property is situated as if probate had
been had in such that county.
Sec. 2107.22. (A)(1)(a) When a will has been admitted to
probate by a probate court and another will of later date is
presented to the same court for probate, notice of the will of
later date shall be given to those persons required to be notified
under section 2107.19 of the Revised Code, and to the fiduciaries
and beneficiaries under the will of earlier date. The probate
court may admit the will of later date to probate the same as if
no earlier will had been so admitted if it appears from the face
of the will of later date, or if an interested person makes a
demand as described in division (A)(1)(b) of this section and it
appears from the testimony of the witnesses to the will given in
accordance with that division, that the execution of the will
complies with the law in force at the time of the execution of the
will in the jurisdiction in which it was executed, or with the law
in force in this state at the time of the death of the testator,
or with the law in force in the jurisdiction in which the testator
was domiciled at the time of
his the testator's death.
(b) Upon the demand of a person interested in having a will of later date admitted to probate, the probate court shall cause at least two of the witnesses to the will of later date, and any other witnesses that the interested person desires to have appear, to come before the probate court and provide testimony. If the interested person so requests, the probate court shall issue a subpoena to compel the presence of any such witness before the probate court to provide testimony.
Witnesses before the probate court pursuant to this division shall be examined, and may be cross-examined, in open court, and their testimony shall be reduced to writing and then filed in the records of the probate court pertaining to the testator's estate.
(2) When an authenticated copy of a will has been admitted to record by a probate court, and an authenticated copy of a will of later date that was executed and proved as required by law, is presented to the same court for record, it shall be admitted to record in the same manner as if no authenticated copy of the will of earlier date had been so admitted.
(3) If a probate court admits a will of later date to probate, or an authenticated copy of a will of later date to record, its order shall operate as a revocation of the order admitting the will of earlier date to probate, or shall operate as a revocation of the order admitting the authenticated copy of the will of earlier date to record. The probate court shall enter on the record of the earlier will a marginal note "later will admitted to probate ..." (giving the date admitted).
(B) When a will that has been declared valid pursuant to section 2107.084 of the Revised Code has been admitted to probate by a probate court, and an authenticated copy of another will of later date that was executed and proved as required by law is presented to the same court for record, the will of later date shall be admitted the same as if no other will had been admitted and the proceedings shall continue as provided in this section.
Sec. 2107.29. When the record of a will is destroyed, a copy
of such the will or a copy of such the will and its probate may be
recorded by the probate court if it appears to the court's
satisfaction that such the record has been destroyed and if it
appears, by reason of a certificate signed and sealed by the
probate judge,
or by the clerk of the court of common pleas, that
such the copy is a true copy of the original will or a true copy
of the original will and its probate.
Sec. 2107.32. Every probate judge who admits a will or copy
of a will to record under sections 2107.29 to 2107.31, inclusive,
of the Revised Code, shall immediately thereafter shall after
admitting the will or copy to record give notice for three
consecutive weeks in two weekly newspapers of his the probate
judge's county if two are published therein in the county, or if
not, in one newspaper of general circulation in the county,
stating the name of the person the record of whose will has been
destroyed and the day when such the record was supplied under
those sections. All persons interested in the record, at any time
within five years from the making of such the record, may come
into the probate court and contest the question whether the record
thus that was supplied is the same as the destroyed record
destroyed.
Sec. 2107.34. If, after making a last will and testament, a
testator has a child born alive, or adopts a child, or designates
an heir in the manner provided by section 2105.15 of the Revised
Code, or if a child or designated heir who is absent and reported
to be dead proves to be alive, and no provision has been made in
such the will or by settlement for such the pretermitted child or
heir, or for the that child's or heir's issue thereof, the will
shall not be revoked; but unless. Unless it appears by such the
will that it was the intention of the testator to disinherit such
the pretermitted child or heir, the devises and legacies granted
by such the will, except those to a surviving spouse, shall be
abated proportionately, or in such any other manner as that is
necessary to give effect to the intention of the testator as shown
by the will, so that such the pretermitted child or heir will
receive a share equal to that which such the person would have
been entitled to receive out of the estate if such the testator
had died intestate with no surviving spouse, owning only that
portion of the testator's estate not devised or bequeathed to or
for the use and benefit of a surviving spouse. If such the
pretermitted child or heir dies prior to the death of the
testator, the issue of such
the deceased child or heir shall
receive the share the parent would have received if living.
If such the pretermitted child or heir supposed to be dead at
the time of executing the will has lineal descendants, provision
for whom is made by the testator, the other legatees and devisees
need not contribute, but such the pretermitted child or heir shall
take the provision made for the pretermitted child's or heir's
lineal descendants or such that part of it as, in the opinion of
the probate judge, may be equitable. In settling the claim of a
pretermitted child or heir, any portion of the testator's estate
received by a party interested, by way of advancement, is a
portion of the estate and shall be charged to the party who has
received it.
Though measured by Chapter 2105. of the Revised Code, the share taken by a pretermitted child or heir shall be considered as a testate succession. This section does not prejudice the right of any fiduciary to act under any power given by the will, nor shall the title of innocent purchasers for value of any of the property of the testator's estate be affected by any right given by this section to a pretermitted child or heir.
Sec. 2107.35. An encumbrance upon real or personal estate
property for the purpose of securing the payment of money or the
performance of a covenant shall not revoke a will previously
executed and will relating to such estate that property.
Sec. 2107.36. An act of a testator which that alters but
does not wholly divest
such the testator's interest in property
previously devised or bequeathed by
him the testator does not
revoke the devise or bequest of such the property, but such. The
devise or bequest shall pass to the devisee or legatee the actual
interest of the testator, which that would otherwise descend to
his the testator's heirs or pass to his the testator's next of
kin;, unless, in the instrument by which such the alteration is
made, declares the testator's intention
is declared that it shall
operate as a revocation of such the previous devise or bequest.
If the instrument by which such the alteration is made is
wholly inconsistent with the previous devise or bequest, such the
instrument will shall operate as a revocation
thereof of the
devise or bequest, unless such the instrument depends on a
condition or contingency, and
such the condition is not performed
or such the contingency does not happen.
Sec. 2107.38. If a testator executes a second will, the
destruction, cancellation, or revocation of the second will shall
not revive the first will unless the terms of such the revocation
show that it was such the testator's intention to revive and give
effect to his the testator's first will or unless, after such the
destruction, cancellation, or revocation of the second will, such
the testator republishes his the testator's first will.
Sec. 2107.46. Any fiduciary may maintain file an action in
the probate court against creditors, legatees, distributees, or
other parties, and ask the direction or judgment of the court in
any matter respecting the trust, estate, or property to be
administered, and the rights of the parties in interest.
If any fiduciary fails for thirty days to bring such file an
action under this section after a written request from a party in
interest, the party making the request may institute file the suit
action.
Sec. 2107.47. (A) The title, estate, or interest of a bona
fide purchaser, lessee, or encumbrancer, for value, in land real
property situated in this state, that is derived from an heir of a
decedent and acquired without knowledge of a will of the decedent
that effectively disposes of it to another person, shall not be
defeated by the production of a will of the decedent, unless, in
the case of a resident decedent, the will is offered for probate
within three months after the death of the decedent, or unless, in
the case of a nonresident decedent, the will is offered for record
in this state within three months after the death of the decedent.
(B) The title, estate, or interest of a bona fide purchaser,
lessee, or encumbrancer, for value, in land real property situated
in this state, that is derived from a beneficiary under a will of
a decedent and acquired without knowledge of a later will of the
decedent that effectively disposes of it to another person, shall
not be defeated by the production of a later will of the decedent,
unless, in the case of a resident decedent, the later will is
offered for probate within three months after the death of the
decedent, or unless, in the case of a nonresident decedent, the
later will is offered for record in this state within three months
after the death of the decedent.
Sec. 2107.49. When lands, tenements, or hereditaments
interests in real property are given by deed or will to a person
for his the person's life, and after his the person's death to his
the person's heirs in fee, the conveyance shall vest an estate for
life only in such the first taker and a remainder in fee simple in
his the heirs of the first taker. If the remainder is given to the
heirs of the body of the life tenant, the conveyance shall vest an
estate for life only in such the first taker and a remainder in
fee simple in the heirs of
his the body of the life tenant. The
rule in Shelley's case is abolished by this section and shall not
be given effect.
Sec. 2107.50. Any estate, right, or interest in any property
of which a decedent was possessed had an interest at his decease
the time of the decedent's death shall pass under
his the
decedent's will unless such the will manifests a different
intention.
Sec. 2107.501. (A) A specific devisee or legatee has the
right of to the remaining specifically devised or bequeathed
property, and the following:
(1) Any balance on the purchase price, together with any security interest owing from a purchaser to the testator at death by reason of sale of the property;
(2) Any amount of condemnation award unpaid at death for the taking of the property;
(3) Any proceeds unpaid at death on fire or casualty insurance on the property;
(4) Property owned by the testator at death as a result of foreclosure, or obtained in lieu of foreclosure, of the security for a specifically devised or bequeathed obligation.
(B) If specifically devised or bequeathed property is sold by
a guardian, by an agent acting within the authority of a power of
attorney, or by an agent acting within the authority of a durable
power of attorney, or if a condemnation award or insurance
proceeds are paid to a guardian, to an agent acting within the
authority of a power of attorney, or to an agent acting within the
authority of a durable power of attorney as a result of
condemnation, fire, or casualty to the property, the specific
devisee or legatee has the right to a general pecuniary devise or
bequest equal to the net proceeds of sale, the condemnation award,
or the insurance proceeds, and such a that devise or bequest shall
be treated as property subject to section 2107.54 of the Revised
Code. This section does not apply if subsequent to the sale,
condemnation, fire, or casualty, it is adjudicated that the
disability of the testator has ceased and the testator survives
the adjudication by one year. The right of the specific devisee or
legatee is reduced by any right the specific devisee or legatee
has acquired under division (A) of this section.
Sec. 2107.51. Every devise of lands, tenements, or
hereditaments an interest in real property in a will shall convey
all the estate of the devisor therein in the property, unless it
clearly appears by the will that the devisor intended to convey a
less estate.
Sec. 2107.52. (A) As used in this section, "relative" means an individual who is related to a testator by consanguinity and an heir at law designated pursuant to section 2105.15 of the Revised Code.
(B) Unless a contrary intention is manifested in the will, if
a devise of real property or a bequest of personal property is
made to a relative of a testator and the relative was dead at the
time the will was made or dies after that time, leaving issue
surviving the testator, those issue shall take by representation
the devised or bequeathed property as the devisee or legatee would
have done if he the devisee or legatee had survived the testator.
If the testator devised or bequeathed a residuary estate or the
entire estate after debts, other general or specific devises and
bequests, or an interest less than a fee or absolute ownership to
that devisee or legatee and relatives of the testator and if that
devisee or legatee leaves no issue, the estate devised or
bequeathed shall vest in the other devisees or legatees surviving
the testator in
such the proportions as that the testamentary
share of each devisee or legatee in the devised or bequeathed
property bears to the total of the shares of all of the surviving
devisees or legatees, unless a different disposition is made or
required by the will.
Sec. 2107.53. When part of the real estate property of a
testator descends to
his the testator's heirs because it was not
disposed of by his the testator's will, and his the testator's
personal estate property is insufficient to pay his the testator's
debts, the undevised real estate property shall be chargeable
first with the debts, as far as it will go, in exoneration of the
real estate property that is devised, unless it appears from the
will that a different arrangement of assets was made for the
payment of such the testator's debts, in which case
such the
assets shall be applied for that purpose in conformity with the
will.
Sec. 2107.54. (A) When real or personal property, devised or
bequeathed, is taken from the devisee or legatee for the payment
of a debt of the testator, the other devisees and legatees shall
contribute their respective proportions of the loss to the person
from whom such the payment was taken so that the loss will fall
equally on all the devisees and legatees according to the value of
the property received by each of them.
If, by making a specific devise or bequest, the testator has exempted a devisee or legatee from liability to contribute to the payment of debts, or if the will makes a different provision for the payment of debts than the one prescribed in this section, the estate shall be applied in conformity with the will.
(B) A devisee or legatee shall not be prejudiced by the fact
that the holder of a claim secured by lien on the property devised
or bequeathed failed to present such the claim to the executor or
administrator for allowance within the time allowed by sections
2117.06 and 2117.07 of the Revised Code, and the devisee or
legatee shall be restored by right of contribution, exoneration,
or subrogation, to the position he the devisee or legatee would
have occupied if such the claim had been presented and allowed for
such the sum as that is justly owing on it.
(C) A devisee of real estate property that is subject to a
mortgage lien that exists on the date of the testator's death, who
does not have a right of exoneration that extends to that lien
because of the operation of division (B) of section 2113.52 of the
Revised Code, has a duty to contribute under this section to
devisees and legatees who are burdened if the claim secured by the
lien is presented and allowed pursuant to Chapter 2117. of the
Revised Code.
(D) This section does not affect the liability of the whole
estate of the testator for the payment of his the testator's
debts. This section applies only to the marshaling of the assets
as between those who hold or claim under the will.
Sec. 2107.55. When a part of the estate of a testator
descends to a child born or adopted, or to an heir designated,
after the execution of the will, or to a child absent and reported
to be dead at the time of execution of the will but later found to
be alive, or to a witness to a will who is a devisee or legatee,
such the estate and the advancement made to such the child, heir,
or witness for all the purposes mentioned in section 2107.54 of
the Revised Code shall be considered as if it had been devised to
such that child, heir, or witness and
he the child, heir, or
witness shall be bound to contribute with the devisees and
legatees, as provided by
such that section, and may claim
contribution from them accordingly.
Sec. 2107.56. When any of the persons liable to contribute
toward the discharge of a testator's debt according to sections
2107.54 and 2107.55 of the Revised Code, is insolvent, the others
shall be severally liable to each other for the loss occasioned by
such the insolvency, each being liable in proportion to the value
of the property received by him the person from the estate of the
deceased. If any one of the persons liable dies without paying his
the person's proportion of such the debt, his the executors and
administrators of the person's estate shall be liable therefor for
that proportion to the extent to which he the person would have
been liable if living.
Sec. 2107.58. When a sale of lands real property aliened or
unaliened by a devisee or heir is ordered for the payment of the
debts of an estate, sections 2107.53 to 2107.57, inclusive, of the
Revised Code do not prevent the probate court from making such an
order and decree for the sale of any portion of the aliened or
unaliened land as real property that is equitable between among
the several parties, and making an order of contribution and
further order and decree to settle and adjust the various rights
and liabilities of the parties.
Sec. 2107.59. When a last will and testament is admitted to
probate, or a will made out of this state is admitted to record as
provided by sections 2129.05 to 2129.07 of the Revised Code, and
lands, tenements, or hereditaments interests in real property are
given or devised by such the will to the executors named in the
will, or nominated pursuant to a power as described in section
2107.65 of the Revised Code, to be sold or conveyed, or such
estate the interests in real property thereby is are ordered to be
sold by such the executors and one or more of the executors dies,
refuses to act, or neglects to take upon himself
self the
execution of the will, then all sales and conveyances of such
estate the interests in real property by the executors who took
upon themselves in this state the execution of the will, or the
survivor of them, shall be as valid as if the remaining executors
had joined in the sale and conveyance. But if none of such the
executors take upon themselves the execution of the will, or if
all the executors who take out letters testamentary die, resign,
or are removed before the sale and conveyance of such estate the
interests in real property, or die, resign, or are removed after
the sale and before the conveyance is made, the sale or
conveyance, or both, shall be made by the administrator with the
will annexed or, if any, by a successor executor or successor
coexecutor nominated pursuant to a power as described in section
2107.65 of the Revised Code.
Sec. 2107.60. An oral will, made in the last sickness, shall
be valid in respect to personal estate property if reduced to
writing and subscribed by two competent disinterested witnesses
within ten days after the speaking of the testamentary words. Such
The witnesses must shall prove that the testator was of sound mind
and memory, not under restraint, and that he the testator called
upon some person present at the time the testamentary words were
spoken to bear testimony to
such the disposition as his the
testator's will.
No oral will shall be admitted to record unless it is offered
for probate within six three months after the death of the
testator.
Sec. 2107.61. Unless it has been admitted to probate or
record, as provided in sections 2107.01 to 2107.62, inclusive, and
or 2129.05 to 2129.07, inclusive, of the Revised Code, no will is
effectual to pass transfer real or personal estate property.
Sec. 2107.65. A testator may confer in his the testator's
will, upon one or more persons, the power to nominate, in writing,
an executor, coexecutor, successor executor, or successor
coexecutor, and also may provide in his
the will that the person
or persons so nominated may serve without bond. If a will confers
such a that power, the holders of it have the authority to
nominate themselves as executor, coexecutor, successor executor,
or successor coexecutor unless the will provides to the contrary.
Sec. 2107.71. (A) A person interested in a will or codicil
admitted to probate in the probate court, which will or codicil
that has not been declared valid by judgment of a probate court
pursuant to section 2107.084 of the Revised Code, or which will or
codicil that has been declared valid by judgment of a probate
court pursuant to section 2107.084 of the Revised Code, but which
has been removed from the possession of the probate judge, may
contest its validity by filing a civil action complaint in the
probate court in the county in which such the will or codicil was
admitted to probate.
(B) Except as otherwise provided in this division, no person
may contest the validity of any will or codicil as to facts
decided if it was submitted to a probate court by its maker the
testator during his the testator's lifetime and declared valid by
judgment of the probate court and filed with the judge of the
probate court pursuant to section 2107.084 of the Revised Code and
if the will was not removed from the possession of the probate
judge. A person may contest the validity of such a that will,
modification, or codicil as to such those facts if the person is
one who should have been named a party defendant in the action in
which the will, modification, or codicil was declared valid,
pursuant to section 2107.081 or 2107.084 of the Revised Code, and
if the person was not named a defendant and properly served in
such that action. Upon the filing of an action a complaint
contesting the validity of a will or codicil that is authorized by
this division, the court shall proceed with the action in the same
manner as if the will, modification, or codicil had not been
previously declared valid under sections 2107.081 to 2107.085 of
the Revised Code.
(C) No person may introduce, as evidence in an action
authorized by this section contesting the validity of a will, the
fact that the testator of the will did not file a petition
complaint for a judgment declaring its validity under section
2107.081 of the Revised Code.
Sec. 2107.73. Persons who are necessary parties to a will contest action are as follows:
(A) Any person designated in a will to receive a testamentary disposition of real or personal property;
(B) Heirs who would take property pursuant to section 2105.06 of the Revised Code had the testator died intestate;
(C) The executor or the administrator with the will annexed;
(D) The attorney general as provided by section 109.25 of the Revised Code;
(E) Other interested parties.
Sec. 2107.75. When the jury or the court finds that the
writing produced is not the last will and testament or codicil of
the testator, the trial court shall allow as part of the costs of
administration such the amounts to the fiduciary and to the
attorneys defending such the purported last will or purported
codicil as that the trial court finds to be reasonable
compensation for the services rendered in such the will contest
action. The court shall order such the amounts allowed to be paid
out of the estate of the decedent.
Sec. 2108.51. Any licensed physician or surgeon who, in good
faith and acting in reliance upon an instrument of consent for an
autopsy or post-mortem examination executed under section 2108.50
of the Revised Code and without actual knowledge of revocation of
such that consent, performs an autopsy or post-mortem examination
is not liable in a civil or criminal action brought against him
the licensed physician or surgeon for such that act.
Sec. 2109.02. Every fiduciary, before entering upon the execution of a trust, shall receive letters of appointment from a probate court having jurisdiction of the subject matter of the trust.
The duties of a fiduciary shall be those required by law, and
such additional duties as the court orders. Letters of appointment
shall not issue until a fiduciary has executed a written
acceptance of the fiduciary's duties, acknowledging that the
fiduciary is subject to removal for failure to perform the
fiduciary's duties, and that the fiduciary is subject to possible
penalties for conversion of property the fiduciary holds held as a
fiduciary. The written acceptance may be filed with the
application for appointment.
No act or transaction by a fiduciary is valid prior to the
issuance of letters of appointment to the fiduciary. This section
does not prevent an executor named in a will, an executor
nominated pursuant to a power as described in section 2107.65 of
the Revised Code, or a person with the right of disposition under
section 2108.70 or 2108.81 of the Revised Code from paying funeral
expenses, or prevent necessary acts for the preservation of the
trust estate prior to the issuance of such those letters.
Sec. 2109.021. After letters of appointment are issued to a
fiduciary, the court shall accept filings by mail in matters of
estates, guardianships, or trusts, unless the court in writing
notifies the fiduciary or attorney of record that a personal
appearance is necessary, or a personal appearance is otherwise
required by law. An The court shall reject an improper or
incomplete filing shall be rejected, and that court shall return
it to the sender, and impose a cost of two dollars and fifty cents
per improper or incomplete filing, chargeable against the estate.
Sec. 2109.03. At the time of the appointment of a fiduciary,
such the fiduciary shall file in the probate court the name of the
attorney, if any, who will represent him the fiduciary in matters
relating to the trust. After the name of an attorney has been
filed, notices sent to such that fiduciary in his the fiduciary's
official capacity shall also be sent by the court to such that
attorney who may sign waiver of service of any or all of such the
notices upon him the attorney. If the fiduciary is absent from the
state, such the attorney shall be the agent of the fiduciary upon
whom summonses, citations, and notices may be served. Any summons,
citation, or notice may be served upon the fiduciary by delivering
duplicate copies thereof of the summons, citation, or notice to
the attorney designated by him the fiduciary. No probate judge
shall permit any person to practice law in the probate court for
compensation, unless he the person has been admitted to the
practice of law within the state. This section does not prevent
any person from representing his the person's own interest in any
estate, matter, action, or proceeding.
Sec. 2109.04. (A)(1) Unless otherwise provided by law,
order, or local rule, every fiduciary, prior to the issuance of
the fiduciary's letters as provided by section 2109.02 of the
Revised Code, shall file in the probate court in which the letters
are to be issued a bond with a penal sum in such an amount as may
be that is fixed by the court, but in no event less than double
the probable value of the personal estate property and of the
annual real estate property rentals which that will come into such
person's hands the possession or under the control of the person
as a fiduciary. The bond of a fiduciary shall be in a form
approved by the court and signed by two or more personal sureties
or by one or more corporate sureties approved by the court. It
shall be conditioned that the fiduciary faithfully and honestly
will discharge the duties devolving upon the person as fiduciary,
and shall be conditioned further as may be provided by law.
(2) Except as otherwise provided in this division, if the instrument creating the trust dispenses with the giving of a bond, the court shall appoint a fiduciary without bond, unless the court is of the opinion that the interest of the trust demands it. If the court is of that opinion, it may require bond to be given in any amount it fixes. If a parent nominates a guardian for the parent's child in a will and provides in the will that the guardian may serve without giving bond, the court may appoint the guardian without bond or require the guardian to give bond in accordance with division (A)(1) of this section.
(3) A guardian of the person only does not have to give bond unless, for good cause shown, the court considers a bond to be necessary. When a bond is required of a guardian of the person only, it shall be determined and filed in accordance with division (A)(1) of this section. This division does not apply to a guardian of the person only nominated in a parent's will if the will provides that the guardian may serve without giving bond.
(4) When the probable value of the personal estate property
and of the annual real estate property rentals that will come into
the guardian's hands possession or under the control of the
guardian as a fiduciary is less than ten thousand dollars, the
court may waive or reduce a bond required by division (A)(1) of
this section.
(B) When an executive director who is responsible for the
administration of children services in the county is appointed as
trustee of the estate of a ward pursuant to section 5153.18 of the
Revised Code and has furnished bond under section 5153.13 of the
Revised Code, or when an agency under contract with the department
of developmental disabilities for the provision of protective
service under sections 5123.55 to 5123.59 of the Revised Code is
appointed as trustee of the estate of a ward under such sections
5123.55 to 5123.59 of the Revised Code and any employees of the
agency having custody or control of funds or property of such a
that ward have furnished bond under section 5123.59 of the Revised
Code, the court may dispense with the giving of a bond.
(C) When letters are granted without bond, at any later
period on its own motion or upon the application of any party
interested, the court may require bond to be given in such an
amount
as may be that is fixed by the court. On failure to give
such that bond, the defaulting fiduciary shall be removed.
No instrument authorizing a fiduciary whom it names to serve
without bond shall be construed to relieve a successor fiduciary
from the necessity of giving bond, unless the instrument clearly
evidences such that intention.
The court by which that appoints a fiduciary is appointed may
reduce the amount of the bond of such the fiduciary at any time
for good cause shown.
When two or more persons are appointed as joint fiduciaries, the court may take a separate bond from each or a joint bond from all.
Sec. 2109.05. When deemed considered necessary by the
probate court and not otherwise directed in the will, a bond, as
provided by sections 2109.01 to 2109.58, inclusive, of the Revised
Code, shall be required in all trusts created by will and not
fully discharged, on the petition of an interested person and
after notice to the trustee.
If such a the trustee fails to give bond within the time
ordered by the court,
he shall be removed the court shall remove
the trustee from his the trust, or the trustee shall be considered
to have declined it. Another person may be appointed in his stead
upon giving the required bond.
Sec. 2109.06. The probate court by which that appoints a
fiduciary is appointed may, on its own motion or on the
application of any interested party, and after notice to the
fiduciary, require a new bond or sureties or an additional bond or
sureties, whenever, in the opinion of such the court, the
interests of the trust demand it.
Immediately upon the filing of the inventory by a fiduciary,
the court shall determine whether the amount of the bond of such
the fiduciary is sufficient and shall require new or additional
bond if in the opinion of the court the interests of the trust
demand it.
When a new bond is required as provided in this section, the
sureties in the prior bond shall nevertheless be liable for all
breaches of the conditions set forth in such the bond which that
are committed before the new bond is approved by the court.
A The court shall remove a fiduciary who fails within the
time fixed by the court to furnish new or additional bond or
sureties shall be removed, and some other person appointed in his
stead, as the circumstances of the case require the court shall
appoint a successor fiduciary.
Sec. 2109.07. (A) The bond required of an administrator by section 2109.04 of the Revised Code shall not be required in either of the following cases:
(1) It shall not be required of a surviving spouse to administer the deceased spouse's estate if the surviving spouse is entitled to the entire net proceeds of the estate.
(2) It shall not be required of an administrator to administer an estate if there is no will, if the administrator is the next of kin, and if the administrator is entitled to the entire net proceeds of the estate.
(B) The bond otherwise required by section 2109.04 of the Revised Code of an administrator shall be conditioned as follows:
(1) To file with the probate court within the time required
by section 2115.02 of the Revised Code an inventory of all
tangible and intangible personal property of the deceased that is
to be administered and that comes to the administrator's
possession or knowledge and an inventory of the deceased's
interest in real estate property located in this state;
(2) To administer and distribute according to law all
tangible and intangible personal property of the deceased, the
proceeds of any action for wrongful death or of any settlement,
with or without suit, of a wrongful death claim, and the proceeds
of all real estate property in which the deceased had an interest,
that is located in this state, and that is sold, when the property
or proceeds have come to the possession of the administrator or to
the possession of a person for the administrator;
(3) To render a just and true account of the administrator's administration at the times required by section 2109.301 of the Revised Code;
(4) To deliver the letters of administration into court if a will of the deceased is proved and allowed.
Sec. 2109.09. (A) Unless the testator has specified otherwise in the will, the bond required of an executor by section 2109.04 of the Revised Code shall not be required of the executor to administer an estate in accordance with the will of the testator if the executor is the next of kin and if the executor is entitled to the entire net proceeds of the estate.
(B) The bond otherwise required of an executor by section 2109.04 of the Revised Code shall be conditioned as follows:
(1) To file with the probate court within the time required
by section 2115.02 of the Revised Code an inventory of all the
tangible and intangible personal property of the testator that is
to be administered and that comes to the executor's possession or
knowledge and an inventory of the testator's interest in real
estate property located in this state;
(2) To administer and distribute according to law and the
will of the testator all the testator's tangible and intangible
personal property, the proceeds of any action for wrongful death
or of any settlement, with or without suit, of a wrongful death
claim, and the proceeds of all real
estate property in which the
testator had an interest, that is located in this state, and that
is sold, when the property or proceeds have come to the possession
of the executor or to the possession of another person for the
executor;
(3) To render a just and true account of the executor's administration at the times required by section 2109.301 of the Revised Code.
Sec. 2109.10. If an executor or administrator is sole residuary legatee or distributee and if division (A) of section 2109.07 or division (A) of section 2109.09 of the Revised Code does not apply, instead of giving the bond prescribed by section 2109.04 of the Revised Code, the executor or administrator may give a bond to the satisfaction of the probate court conditioned as follows:
(A) To pay the costs of administration and all the debts and legacies of the decedent to the extent of the assets of the estate;
(B) If there is a will, to pay over the testator's estate to the person entitled to the testator's estate if the will is set aside;
(C) If there is no will offered at the opening of the estate, to pay over the testator's estate to the person entitled to the testator's estate if a will is probated after the administrator's initial appointment.
The giving of such that bond shall not discharge the lien on
the decedent's real estate property for the payment of the
decedent's debts, except that part which that has been lawfully
sold by the executor or administrator.
Sec. 2109.11. The bond required by section 2109.04 of the Revised Code of a testamentary trustee shall be conditioned as follows:
(A) To make and return to the probate court within the time
required by section 2109.58 of the Revised Code a true inventory
of all moneys, chattels, rights, credits, other personal property,
and real estate property belonging to the trust that come to the
trustee's possession or knowledge;
(B) To administer and distribute according to law and the
will of the testator all moneys, chattels, rights, credits, other
personal property and real estate property belonging to the trust
that come to the possession of the trustee or to the possession of
any other person for the trustee;
(C) To render a just and true account of the trustee's administration at the times required by section 2109.303 of the Revised Code.
Sec. 2109.12. Any bond required by or pursuant to section 2109.04 of the Revised Code of a guardian shall be conditioned as follows:
(A) If applicable, to make and return to the probate court
within the time required by section 2111.14 of the Revised Code a
true inventory of all moneys, chattels, rights, credits, other
personal property, and real
estate property belonging to the ward
that come to the guardian's possession or knowledge;
(B) To administer and distribute according to law all moneys,
chattels, rights, credits, other personal property, and real
estate
property belonging to the ward that come to the possession
of the guardian or to the possession of any other person for the
guardian;
(C) To render a just and true account of the guardian's administration at any times required by or pursuant to section 2109.302 of the Revised Code.
Sec. 2109.14. If the estate held by a fiduciary consists in
whole or in part of works of nature or of art which that are
suitable for preservation and exhibition in a museum or other
similar institution, the probate court may authorize and direct
that any or all of such those works be deposited with a
corporation conducting such a the museum or other similar
institution; provided that no such deposit shall be authorized or
directed except with a corporation having a net worth of at least
ten times the value of the works to be deposited. Such The deposit
shall be made in the name of the fiduciary, and the property
deposited shall not be withdrawn from the custody of such the
depository or otherwise deposited except upon the special order of
the court. The probate judge may impose such any conditions
relative to insurance and the care and protection of the property
deposited as that the court thinks best for the interests of the
estate and the beneficiaries thereof of the estate. After such the
deposit has been made, a receipt for said that property executed
by
said that corporation shall be filed with the court, which and
the receipt shall acknowledge that said the property is held by
said
that corporation subject to the order of the court. When
such the receipt is filed, the court may fix or reduce the amount
of the bond so that the amount of the penalty thereof of the bond
is determined with respect to the value of the remainder only of
the estate or fund, without including the value of the property
deposited. Neither the fiduciary nor his the fiduciary's sureties
shall be liable for any loss to the trust estate resulting from a
deposit authorized and directed by the court pursuant to this
section, provided such the fiduciary has acted in good faith.
Sec. 2109.17. If the bond of a fiduciary is executed by
personal sureties, one or more of such the sureties shall be a
resident of the county in which such the fiduciary applies for
appointment. The sureties shall own real property worth double the
sum to be secured, over and above all encumbrances, and shall have
property in this state liable to execution equal to the sum to be
secured.
When If two or more sureties are offered on the same
bond, they must have in the aggregate the qualifications
prescribed in this section. Such The sureties shall qualify under
oath and may be required to exhibit to the probate court
satisfactory evidence of the ownership of such the real property.
No corporate surety shall be acceptable on a fiduciary's bond
in such the probate court unless such the surety is acceptable to
the United States government on surety bonds in like the same
amount, as shown by the regulations issued by the secretary of the
treasury of the United States, or in any other manner, to the
satisfaction of the court. Such The surety shall also be qualified
to do business in this state.
A surety on the bond of a fiduciary shall not be held liable
for any debt of
such the fiduciary to the estate represented by
him the fiduciary existing at the time such the fiduciary was
appointed; but such the surety shall be liable to the extent that
such the debt has been made uncollectible by wrongful act of such
the fiduciary after appointment.
Sec. 2109.19. If a fiduciary wastes or unfaithfully
administers an estate, on the application of a surety on the
fiduciary's bond the probate court granting letters of appointment
to such the fiduciary may order him the fiduciary to render an
account and to execute to such the surety a bond of indemnity with
sureties approved by the court. Upon neglect or refusal to execute
such the bond within the time ordered, the court may remove such
the fiduciary, revoke his the fiduciary's letters of appointment,
and appoint another fiduciary in his the fiduciary's place.
Sec. 2109.20. Instead of the sureties required on his a
guardian's bond by section 2109.04 of the Revised Code, a guardian
of the person and estate or of the estate only of any ward may
execute to the ward a mortgage upon unencumbered real estate
property. The guardian first shall furnish to the probate court a
title guarantee or a mortgagee's title insurance policy for the
benefit of the guardianship, with respect to the real estate
property, and it shall be shown to the court's satisfaction that,
exclusive of improvements on the real estate property, the real
estate property is of a value sufficient to secure the bond. The
mortgage shall be recorded in the county in which the property is
situated and filed with the court.
Sec. 2109.21. (A) An administrator, special administrator, administrator de bonis non, or administrator with the will annexed shall be a resident of this state and shall be removed on proof that the administrator is no longer a resident of this state.
(B)(1) To qualify for appointment as executor or trustee, an
executor or a trustee named in a will or nominated in accordance
with any power of nomination conferred in a will, may be a
resident of this state or, as provided in this division, a
nonresident of this state. To qualify for appointment, a
nonresident executor or trustee named in, or nominated pursuant
to, a will shall be an individual who is related to the maker of
the will testator by consanguinity or affinity, or a person who
resides in a state that has statutes or rules that authorize the
appointment of a nonresident person who is not related to the
maker of a will testator by consanguinity or affinity, as an
executor or trustee when named in, or nominated pursuant to, a
will. No such executor or trustee shall be refused appointment or
removed solely because the executor or trustee is not a resident
of this state.
The court may require that a nonresident executor or trustee named in, or nominated pursuant to, a will assure that all of the assets of the decedent that are in the county at the time of the death of the decedent will remain in the county until distribution or until the court determines that the assets may be removed from the county.
(2) In accordance with this division and section 2129.08 of the Revised Code, the court shall appoint as an ancillary administrator a person who is named in the will of a nonresident decedent, or who is nominated in accordance with any power of nomination conferred in the will of a nonresident decedent, as a general executor of the decedent's estate or as executor of the portion of the decedent's estate located in this state, whether or not the person so named or nominated is a resident of this state.
To qualify for appointment as an ancillary administrator, a
person who is not a resident of this state and who is named or
nominated as described in this division, shall be an individual
who is related to the maker of the will testator by consanguinity
or affinity, or a person who resides in a state that has statutes
or rules that authorize the appointment of a nonresident of that
state who is not related to the maker of a will testator by
consanguinity or affinity, as an ancillary administrator when the
nonresident is named in a will or nominated in accordance with any
power of nomination conferred in a will. If a person who is not a
resident of this state and who is named or nominated as described
in this division so qualifies for appointment as an ancillary
administrator and if the provisions of section 2129.08 of the
Revised Code are satisfied, the court shall not refuse to appoint
the person, and shall not remove the person, as ancillary
administrator solely because the person is not a resident of this
state.
The court may require that an ancillary administrator who is not a resident of this state and who is named or nominated as described in this division, assure that all of the assets of the decedent that are in the county at the time of the death of the decedent will remain in the county until distribution or until the court determines that the assets may be removed from the county.
(C)(1) A guardian of the estate shall be a resident of this state, except that the court may appoint a nonresident of this state as a guardian of the estate if any of the following applies:
(a) The nonresident is named in a will by a parent of a minor.
(b) The nonresident is selected by a minor over the age of fourteen years as provided by section 2111.12 of the Revised Code.
(c) The nonresident is nominated in or pursuant to a durable power of attorney as described in division (D) of section 1337.09 of the Revised Code or a writing as described in division (A) of section 2111.121 of the Revised Code.
(2) A guardian of the estate, other than a guardian named in a will by a parent of a minor, selected by a minor over the age of fourteen years, or nominated in or pursuant to a durable power of attorney or writing described in division (C)(1)(c) of this section, may be removed on proof that the guardian of the estate is no longer a resident of this state.
(3) The court may appoint a resident or nonresident of this state as a guardian of the person.
(D) Any fiduciary, whose residence qualifications are not defined in this section, shall be a resident of this state, and shall be removed on proof that the fiduciary is no longer a resident of this state.
(E) Any fiduciary, in order to assist in the carrying out of the fiduciary's fiduciary duties, may employ agents who are not residents of the county or of this state.
(F) Every fiduciary shall sign and file with the court a statement of permanent address and shall notify the court of any change of address. A court may remove a fiduciary if the fiduciary fails to comply with this division.
Sec. 2109.22. The marriage of any person does not disqualify
him
the person from acting as fiduciary, whether the marriage
occurs before or after his the person's appointment and
qualification, and all of his the person's acts in such that
capacity shall have the same validity as though he the person were
unmarried.
Sec. 2109.24. The probate court at any time may accept the resignation of any fiduciary upon the fiduciary's proper accounting, if the fiduciary was appointed by, is under the control of, or is accountable to the court. The fiduciary may resign by filing a written statement with the court after giving at least fifteen days notice to the persons known to be interested in the estate. Upon notice or a motion of the fiduciary to resign, the court may set the matter for a hearing and may notify all interested persons. No fiduciary shall resign without an order of the court.
If a fiduciary fails to make and file an inventory as
required by sections 2109.58, 2111.14, and 2115.02 of the Revised
Code or to render a just and true account of the fiduciary's
administration at the times required by section 2109.301,
2109.302, or 2109.303 of the Revised Code, and if the failure
continues for thirty days after the fiduciary has been notified by
the court of the expiration of the relevant time, the fiduciary
forthwith may be removed by the court and shall receive no
allowance for the fiduciary's services unless the court enters
upon its journal its findings that the delay was necessary and
reasonable.
The court may remove any fiduciary, after giving the fiduciary not less than ten days' notice, for habitual drunkenness, neglect of duty, incompetency, or fraudulent conduct, because the interest of the property, testamentary trust, or estate that the fiduciary is responsible for administering demands it, or for any other cause authorized by law.
The court may remove a testamentary trustee upon the written
application of more than one-half of the persons having an
interest in the estate controlled by the testamentary trustee, but
the testamentary trustee is not to be considered as a person
having an interest in the estate under the proceedings; except
that no testamentary trustee appointed under a will shall be
removed upon such the written application unless for a good cause.
Upon the resignation or removal of the fiduciary, the court shall revoke all letters of authority for the fiduciary.
Sec. 2109.25. (A) Whenever it appears to the satisfaction of
the probate court that a fiduciary is unable to perform his the
fiduciary's duties because he the fiduciary is engaged or is about
to engage in military service as defined by this section, the
court may remove such the fiduciary and appoint a substitute or
authorize the remaining fiduciaries to execute the trust. Such
That action may be taken on the court's own motion or on the
application of any party in interest, including the fiduciary or
cofiduciary, either without notice or upon notice to such those
persons and in
such the manner as that the court shall direct.
If any of the duties of such that office remain unexecuted
when a fiduciary who has resigned or been removed on account of
his the fiduciary's military service ceases to be in
such that
military service, he the fiduciary shall be reappointed as
fiduciary upon his the fiduciary's application to the court and
upon such any notice as that the court may direct, provided he the
fiduciary is at the time a suitable and competent person and has
the qualifications as to residence required by section 2109.21 of
the Revised Code. If such the person is reappointed, the court
shall remove the substitute fiduciary and revoke his the
substitute fiduciary's letters of appointment, and shall make such
further order or decree as justice requires.
"Military service," as (B) As used in this section, "military
service" means any service, work, or occupation which that in the
opinion of the court is directly or indirectly in furtherance of
any military effort of the United States. Such definition
"Military service" includes internment in an enemy country,
residence in any foreign country, or residence in any possession
or dependency of the United States, if by reason
thereof of the
internment or residence the fiduciary is unable to return to this
state.
Sec. 2109.26. If a sole fiduciary dies, is dissolved,
declines to accept, resigns, is removed, or becomes incapacitated
prior to the termination of the trust, the probate court shall
require a final account of all dealings of such the trust to be
filed
forthwith by such the fiduciary if a living person and able
to act. If such the fiduciary is a living person but unable to
act,
such the final account shall be filed by his the fiduciary's
guardian, or, if there is no guardian, by some other suitable
person in his the fiduciary's behalf, appointed or approved by the
court. If such the fiduciary is a deceased person, such the final
account shall be filed by his the fiduciary's executor or
administrator. If no estate is commenced for a deceased fiduciary,
the deceased fiduciary's successor shall file the final account.
If such the fiduciary is a dissolved corporation,
such the final
account shall be filed by such those persons as that are charged
by law with winding up the affairs of such the dissolved
corporation.
Thereupon the
The court shall cause such the
proceedings to be had as are provided by sections 2109.30 to
2109.36, inclusive, of the Revised Code.
Whenever such a vacancy occurs and such that contingency is
not otherwise provided for by law or by the instrument creating
the trust, or whenever such the instrument names no fiduciary, the
court shall, on its own motion or on the application of any person
beneficially interested, issue letters of appointment as fiduciary
to some a competent person or persons who shall qualify according
to law and execute the trust to its proper termination.
Such The
vacancy and the appointment of a successor fiduciary shall not
affect the liability of the former fiduciary or his the former
fiduciary's sureties which that was previously incurred.
Sec. 2109.302. (A) Every guardian or conservator shall render an account of the administration of the ward's estate at least once in each two years. The guardian or conservator shall render an account at any time other than a time otherwise mentioned in this section upon the order of the probate court issued for good cause shown either at its own instance or upon the motion of any person interested in the estate. Except as provided in division (B) of this section, every guardian or conservator shall render a final account within thirty days after completing the administration of the ward's estate or within any other period of time that the court may order.
Every account shall include an itemized statement of all receipts of the guardian or conservator during the accounting period and of all disbursements and distributions made by the guardian or conservator during the accounting period. The itemized disbursements and distributions shall be verified by vouchers or proof, except in the case of an account rendered by a corporate fiduciary subject to section 1111.28 of the Revised Code. In addition, the account shall include an itemized statement of all funds, assets, and investments of the estate known to or in the possession of the guardian or conservator at the end of the accounting period and shall show any changes in investments since the last previous account.
Every account shall be upon the signature of the guardian or conservator. When two or more guardians or conservators render an account, the court may allow the account upon the signature of one of the guardians or conservators.
Upon the filing of every account, the guardian or
conservator, except a corporate fiduciary subject to section
1111.28 of the Revised Code, shall exhibit to the court for its
examination both of the following: the securities shown in the
account as being in the hands possession or under the control of
the guardian or conservator, or the certificate of the person in
possession of the securities, if held as collateral or pursuant to
section 2109.13 or 2131.21 of the Revised Code; and a passbook or
certified bank statement showing as to each depository the fund
deposited to the credit of the ward's estate. The court may
designate a deputy clerk, an agent of a corporate surety on the
bond of the guardian or conservator, or another suitable person
whom the court appoints as commissioner to make the examination
and to report the person's findings to the court. When If
securities are located outside the county, the court may appoint a
commissioner or request another probate court to make the
examination and to report its findings to the court. The court may
examine the guardian or conservator under oath concerning the
account.
When If a guardian or conservator is authorized by law to
distribute the assets of the estate, in whole or in part, the
guardian or conservator may do so and include a report of the
distribution in the guardian's or conservator's succeeding
account.
(B)(1) The court may waive, by order, an account that division (A) of this section requires of a guardian of the estate or of a guardian of the person and estate, other than an account made pursuant to court order, if any of the following circumstances apply:
(a) The assets of the estate consist entirely of real property.
(b) The assets of the estate consist entirely of personal property, that property is held by a bank, savings and loan association, or trust company in accordance with section 2109.13 of the Revised Code, and the court has authorized expenditures of not more than ten thousand dollars annually for the support, maintenance, or, if applicable, education of the ward.
(c) The assets of the estate consist entirely of real property and of personal property that is held by a bank, savings and loan association, or trust company in accordance with section 2109.13 of the Revised Code, and the court has authorized expenditures of not more than ten thousand dollars annually for the support, maintenance, or, if applicable, education of the ward.
(2) The order of a court entered pursuant to division (B)(1) of this section is prima-facie evidence that a guardian of the estate or a guardian of the person and estate has authority to make expenditures as described in divisions (B)(1)(b) and (c) of this section.
(3) Notwithstanding the requirements for accounts by other guardians under this section, a guardian of the person is not required to render an account except upon an order of the court that the court issues for good cause shown either at its own instance or upon the motion of any person interested in the estate.
Sec. 2109.303. (A) Except as provided in division (B) of this section, every testamentary trustee shall, and every other fiduciary not subject to section 2109.301 or 2109.302 of the Revised Code may, render an account of the trustee's or other fiduciary's administration of the estate or trust at least once in each two years. Any testamentary trustee or other fiduciary shall render an account, subject to division (B) of this section, at any time other than a time otherwise mentioned in this section upon an order of the court issued for good cause shown either at its own instance or upon the motion of any person interested in the estate or trust. Every testamentary trustee shall, and every other fiduciary may, render a final account within thirty days after completing the administration of the estate or trust or shall file a final account within any other period of time that the court may order.
Every account shall include an itemized statement of all receipts of the testamentary trustee or other fiduciary during the accounting period and of all disbursements and distributions made by the testamentary trustee or other fiduciary during the accounting period. The itemized disbursements and distributions shall be verified by vouchers or proof, except in the case of an account rendered by a corporate fiduciary subject to section 1111.28 of the Revised Code. In addition, the account shall include an itemized statement of all funds, assets, and investments of the estate or trust known to or in the possession of the testamentary trustee or other fiduciary at the end of the accounting period and shall show any changes in investments since the last previous account. The accounts of testamentary trustees shall, and the accounts of other fiduciaries may, show receipts and disbursements separately identified as to principal and income.
Every account shall be upon the signature of the testamentary trustee or other fiduciary. When two or more testamentary trustees or other fiduciaries render an account, the court may allow the account upon the signature of one of them.
Upon the filing of every account, the testamentary trustee or
other fiduciary, except a corporate fiduciary subject to section
1111.28 of the Revised Code, shall exhibit to the court for its
examination both of the following: the securities shown in the
account as being in the hands possession or under the control of
the testamentary trustee or other fiduciary, or the certificate of
the person in possession of the securities, if held as collateral
or pursuant to section 2109.13 or 2131.21 of the Revised Code; and
a passbook or certified bank statement showing as to each
depository the fund deposited to the credit of the estate or
trust. The court may designate a deputy clerk, an agent of a
corporate surety on the bond of the testamentary trustee or other
fiduciary, or another suitable person whom the court appoints as
commissioner to make the examination and to report the person's
findings to the court.
When If securities are located outside the
county, the court may appoint a commissioner or request another
probate court to make the examination and to report its findings
to the court. The court may examine the testamentary trustee or
other fiduciary under oath concerning the account.
When If a testamentary trustee or other fiduciary is
authorized by law or by the instrument governing distribution to
distribute the assets of the estate or trust, in whole or in part,
the testamentary trustee or other fiduciary may do so and include
a report of the distribution in the testamentary trustee's or
fiduciary's succeeding account.
(B) If the assets of a testamentary charitable trust are held and managed by a testamentary trustee or other fiduciary who is an individual or by a corporate fiduciary and if the trust merges into a qualified community foundation, then, after the testamentary trustee or other fiduciary files with the court a final and distributive account pertaining to the trust and activities up to the effective date of the merger, the testamentary trustee or other fiduciary and any successors of the testamentary trustee or other fiduciary shall not be required to render any accounting to the court pertaining to the merged trust and activities that follow the effective date of the merger.
(C) As used in this section:
(1) "Charitable trust" has the same meaning as in section 109.23 of the Revised Code.
(2) "Qualified community foundation" means any foundation that is exempt from federal income taxation under sections 170(b)(1)(A)(vi) and 501(c)(3) of the "Internal Revenue Code of 1986," 100 Stat. 2085, 26 U.S.C. 170(b)(1)(A)(vi) and 501 (c)(3), as amended; that is further described in section 1.170A-9(10) and (11) of Title 26 of the Code of Federal Regulations, 26 C.F.R. 1.170A-9(10) and (11), as amended; and that publishes at least annually and circulates widely within its community an audited report of its fund balances, activities, and donors.
(3) "Testamentary charitable trust" means any charitable trust that is created by a will.
(4) "Other fiduciary" means a fiduciary other than an executor, administrator, guardian, conservator, or testamentary trustee.
Sec. 2109.32. (A) Every fiduciary's account required by section 2109.301, 2109.302, or 2109.303 of the Revised Code shall be set for hearing before the probate court. The hearing on the account shall be set not earlier than thirty days after the filing of the account.
At the hearing upon an account required by section 2109.302
or 2109.303 of the Revised Code and, if ordered by the court, upon
an account required by section 2109.301 of the Revised Code, the
court shall inquire into, consider, and determine all matters
relative to the account and the manner in which the fiduciary has
executed the fiduciary's trust, including the investment of trust
funds, and may order the account approved and settled or make any
other order as that the court considers proper. If, at the hearing
upon an account, the court finds that the fiduciary has fully and
lawfully administered the estate or trust and has distributed the
assets of the estate or trust in accordance with the law or the
instrument governing distribution, as shown in the account, the
court shall order the account approved and settled and may order
the fiduciary discharged. Upon approval of a final and
distributive account required by division (B)(1) of section
2109.301 of the Revised Code, the court may order the surety bond
for the fiduciary terminated. Unless otherwise ordered by the
court, the fiduciary shall be discharged without further order
twelve months following the approval of the final and distributive
account.
(B)(1) An administrator or executor filing an account pursuant to section 2109.301 of the Revised Code shall provide at the time of filing the account a copy of the account to each heir of an intestate estate or to each beneficiary of a testate estate. An administrator or executor is not required to provide a copy of the account to any of the following:
(a) An heir or a beneficiary whose residence is unknown;
(b) A beneficiary of a specific bequest or devise who has
received his or her the beneficiary's distribution and for which a
receipt has been filed or exhibited with the court.
(2) An administrator or executor filing an account pursuant to section 2109.301 of the Revised Code shall file with the probate court a certificate of service of account prior to or simultaneously with the filing of the account.
(3) The probate court shall not approve the final account of any executor or administrator until the following events have occurred:
(a) Three months have passed since the death of the decedent.
(b) The surviving spouse has filed an election to take under or against the will, or the time for making the election has expired.
(4) If an administrator or executor learns of the existence of newly discovered assets after the filing of the final account or otherwise comes into possession of assets belonging to the estate after the filing of the final account, the executor or administrator shall file a supplemental final account with respect to the disposition of the assets and shall provide a copy of the supplemental final account to each heir of an intestate estate or to each beneficiary of a testate estate, as provided in division (B)(1) of this section and subject to the exceptions specified in divisions (B)(1)(a) and (b) of this section.
(C) The rights of any person with a pecuniary interest in the estate are not barred by approval of an account pursuant to divisions (A) and (B) of this section. These rights may be barred following a hearing on the account pursuant to section 2109.33 of the Revised Code.
Sec. 2109.33. A fiduciary may serve notice of the hearing
upon his the fiduciary's account to be conducted under section
2109.32 of the Revised Code, or may cause the notice to be served,
upon any person who is interested in the estate or trust,
including creditors as the court may direct. The probate court,
after notice to the fiduciary upon the motion of any interested
person for good cause shown or at its own instance, may order that
a notice of the hearing is to be served upon persons the court
designates.
The notice shall be made by mail in addition to service by
publication, shall set forth the time and place of the hearing,
and shall specify the account to be considered and acted upon by
the court at the hearing and the period of time covered by the
account. It shall contain a statement to the effect that the
person notified is required to examine the account, to inquire
into the contents of the account and into all matters that may
come before the court at the hearing on the account, and to file
any exceptions that the person may have to the account at least
five days prior to the hearing on the account, and that upon his
the person's failure to file exceptions, the account may be
approved without further notice. If the person to be notified was
not a party to the proceeding in which any prior account was
settled, the notice, for the purpose of barring any rights
possessed by that person, may include and specify the prior
accounts and the periods of time covered by them. In that event,
the notice shall inform the person notified that the approval of
the account filed most recently will terminate any rights
possessed by him the person to vacate the order settling each
prior account so specified, except as provided in section 2109.35
of the Revised Code, and shall further inform the person that,
under penalty of losing those rights, he forthwith the person
shall examine each prior account so specified, shall inquire into
its contents, and, if he deems the person considers it necessary
to protect his the person's rights, shall take the action with
respect to his the person's rights that is permitted by law.
The notice of the hearing upon an account shall be served at least fifteen days prior to the hearing on the account. Any competent person may waive service of notice and consent to the approval of any account by the court. Waivers of service and consents to approval shall be recorded with the account.
Any person interested in an estate or trust may file exceptions to an account or to matters pertaining to the execution of the trust. All exceptions shall be specific and written. Exceptions shall be filed and a copy of them furnished to the fiduciary by the exceptor, not less than five days prior to the hearing on the account. The court for cause may allow further time to file exceptions. If exceptions are filed to an account, the court may allow further time for serving notice of the hearing upon any person who may be affected by an order disposing of the exceptions and who has not already been served with notice of the hearing in accordance with this section.
A probate court, by local rule, may require that notice of the hearing on a final account be given to all heirs in an intestate estate and to all residuary beneficiaries in a testate estate.
Any notice that is required or permitted by this section or by any local rule adopted under authority of this section shall be served, and any waiver of the right to receive any notice of those types may be waived, in accordance with the Rules of Civil Procedure.
Sec. 2109.34. If an interest in an estate or trust is or may
be possessed by persons who will compose a certain class upon the
happening of any future event, the unborn members of such that
class shall be deemed considered to be represented in any hearing
upon a fiduciary's account required by section 2109.32 of the
Revised Code, if any living member of the class is made a party to
such
that proceeding or if a trustee for the proceeding is
appointed by the probate court. The unborn members of such the
class need not be served by publication. An order made in such
the proceeding shall be binding upon all members of such
the
class, except that such the order may be vacated for fraud as
provided in section 2109.35 of the Revised Code.
If the beneficiaries, both present and future, of a
charitable trust are not represented by a trustee or an existing
corporation or other organization, they shall be represented in
any such proceeding under this section by the attorney general if
he the attorney general is made a party thereto to the proceeding.
Any order made in the proceeding shall be binding upon such those
beneficiaries, except for fraud.
Sec. 2109.35. The order of the probate court upon the settlement of a fiduciary's account shall have the effect of a judgment and may be vacated only as follows:
(A) The order may be vacated for fraud, upon motion of any
person affected by the order or upon the court's own order, if the
motion is filed or order is made within one year after discovery
of the existence of the fraud. Any person who is subject to any
legal disability may file the motion at any time within one year
after the removal of the legal disability or within one year after
he the person discovers the existence of the fraud, whichever is
later, or his the person's guardian or a successor guardian may do
so during the period of the legal disability. If the death of any
person occurs during the period within which he the person could
have filed the motion, his the person's administrator or executor
may file it within one year after the person's death.
(B) The order may be vacated for good cause shown, other than
fraud, upon motion of any person affected by the order who was not
a party to the proceeding in which the order was made and who had
no knowledge of the proceeding in time to appear in it; provided
that, if the account settled by the order is included and
specified in the notice to that person of the proceeding in which
a subsequent account is settled, the right of that person to
vacate the order shall terminate upon the settlement of the
subsequent account. A person affected by an order settling an
account shall be deemed considered to have been a party to the
proceeding in which the order was made if that person was served
with notice of the hearing on the account in accordance with
section 2109.33 of the Revised Code, waived that notice, consented
to the approval of the account, filed exceptions to the account,
or is bound by section 2109.34 of the Revised Code; but no person
in being who is under legal disability at the time of that
proceeding shall be
deemed considered to have been a party to that
proceeding unless he the person was represented in it as provided
in section 2111.23 of the Revised Code. Neither the fiduciary nor
his the fiduciary's surety shall incur any liability as a result
of the vacation of an order settling an account in accordance with
this division, if the motion to vacate the order is filed more
than three years following the settlement of the fiduciary's
account showing complete distribution of assets; but the
three-year period shall not affect the liability of any heir,
devisee, or distributee either before or after the expiration of
that period.
(C) The order may be vacated for good cause shown upon motion of the fiduciary, if the motion is filed prior to the settlement of the account showing that the fiduciary has fully discharged his trust.
A motion to vacate an order settling an account shall set forth the items of the account with respect to which complaint is made and the reasons for complaining of those items. The person filing a motion to vacate an order settling an account or another person the court may designate shall cause notice of the hearing on the motion to be served upon all interested parties who may be adversely affected by an order of the court granting the motion.
An order settling an account shall not be vacated unless the court determines that there is good cause for doing so, and the burden of proving good cause shall be upon the complaining party.
The vacation of an order settling an account, made after
notice given in the manner provided in section 2109.33 of the
Revised Code, shall not affect the rights of a purchaser for value
in good faith, a lessee for value in good faith, or an
encumbrancer for value in good faith; provided that, if the
fiduciary has effected any such sale, lease, or encumbrance, any
person prejudiced by it may proceed, after vacation of the order,
against any distributee benefiting from the sale, lease, or
encumbrance to the extent of the amount received by that
distributee on distribution of the estate or trust, or if any
heir, devisee, or distributee has effected any such sale, lease,
or encumbrance, any person prejudiced by it may proceed, after the
vacation of the order, against that heir, devisee, or distributee,
to the extent of the value at the time of alienation of the
property aliened by him the person, with legal interest.
Sec. 2109.36. An application for an order of distribution of
the assets of an estate or trust held by a fiduciary may be set
for hearing before the probate court at such the time as that the
court shall designate. The fiduciary may serve notice of the
hearing upon such the application, or cause such the notice to be
served, upon any person who may be affected by an order disposing
thereof of the application; or the court, upon motion of any
interested person for good cause shown or at its own instance, may
order such the notice to be served upon any such that person. Such
The notice shall set forth the time and place of the hearing and
shall be accompanied by a statement of the proposed distribution.
At the hearing upon the application the court shall inquire into,
consider, and determine all matters relative thereto to the
application, and make such an order as that the court
deems
considers proper. If the court makes an order of distribution, the
fiduciary shall comply therewith
with the order and shall account
to the court for his the fiduciary's distribution, verified by
vouchers or proof. An order of distribution shall have the effect
of a judgment. Such
The order may be reviewed upon appeal and may
be vacated as provided in section 2109.35 of the Revised Code.
Sec. 2109.361. (A) As used in this section, "third-party distribution" means the distribution by a fiduciary of an estate or trust of the assets of that estate or trust when both of the following apply:
(1) The fiduciary makes the distribution to either of the following persons:
(a) The transferee of a beneficiary;
(b) Any person pursuant to an agreement, request, or instruction of a beneficiary or pursuant to a legal claim against a beneficiary.
(2) The distribution is the subject of an agreement between a beneficiary and any person that requires the fiduciary or beneficiary to pay a percentage of an inheritance or a dollar amount to any person other than the beneficiary.
(B) Prior to making a third-party distribution, the affected beneficiary or the affected beneficiary's guardian or other legal representative of the beneficiary may file an application for the approval of a third-party distribution with the probate court. An application filed pursuant to this division shall identify the person to whom the third-party distribution is to be made, disclose the basis for making the third-party distribution, and include a copy of any written agreement between the affected beneficiary and the person to whom the third-party distribution is to be made.
(C) The probate court shall hold a hearing on an application filed under division (B) of this section. The applicant shall serve notice of the hearing on all interested parties at least fifteen days prior to the hearing in accordance with Civil Rule 73. An interested party may waive notice of the hearing in accordance with Civil Rule 73.
(D) The probate court may approve the third-party distribution in whole or in part, as the court determines is just and equitable. To the extent that the application is approved, the court shall determine whether the third-party distribution is properly charged solely against the beneficiary's share of the estate or trust or whether some or all of the third-party distribution is properly charged against the residue of the affected estate or trust. The court may consider any relevant factors in evaluating the application, including, but not limited to, any of the following:
(1) The amount or percentage of the affected beneficiary's
share that would be the subject of the proposed third-party
distribution measured against the reasonable value of any goods
assets or services the person to whom the third-party distribution
would be made provided to the beneficiary or to the estate or
trust;
(2) Whether the agreement, request, or instructions of the affected beneficiary were procured by duress, fraud, misrepresentation, undue influence, or other unfair means;
(3) Whether the amount of the proposed third-party distribution is fixed or contingent under the terms of the agreement between the affected beneficiary and the recipient of the proposed third-party distribution;
(4) Whether the beneficiary was represented by an attorney during the pendency of the probate action, or the beneficiary authorized the recipient of the proposed third-party distribution to retain an attorney who is licensed to practice law in Ohio for the beneficiary to formally represent the beneficiary in any proceeding regarding the decedent's estate, and the recipient of the proposed third-party distribution is responsible for paying the attorney's fees;
(5) The extent, if any, to which the recipient of the proposed third-party distribution incurred expenses in connection with the services provided to the affected beneficiary, estate, or trust;
(6) Whether the beneficiary was required to advance any payments for fees or expenses to the recipient of the proposed third-party distribution.
(E) Division (D)(4) of this section does not prohibit the beneficiary from retaining the beneficiary's own legal counsel.
(F) This section does not apply to third-party distributions to an attorney who represents a beneficiary and does not affect any other provision of law regarding the compensation of attorneys.
Sec. 2109.37. (A) Except as otherwise provided by law,
including division (D) of this section, or by the instrument
creating the trust, a fiduciary having funds belonging to a trust
which that are to be invested may invest them in the following:
(1) Bonds or other obligations of the United States or of this state;
(2) Bonds or other interest-bearing obligations of any
county, municipal corporation, school district, or other legally
constituted political taxing subdivision within the state,
provided that such the county, municipal corporation, school
district, or other subdivision has not defaulted in the payment of
the interest on any of its bonds or interest-bearing obligations,
for more than one hundred twenty days during the ten years
immediately preceding the investment by the fiduciary in the bonds
or other obligations, and provided that such the county, municipal
corporation, school district, or other subdivision, is not, at the
time of the investment, in default in the payment of principal or
interest on any of its bonds or other interest-bearing
obligations;
(3) Bonds or other interest-bearing obligations of any other
state of the United States which, within twenty years prior to the
making of such that investment, has not defaulted for more than
ninety days in the payment of principal or interest on any of its
bonds or other interest-bearing obligations;
(4) Any bonds issued by or for federal land banks and any debentures issued by or for federal intermediate credit banks under the "Federal Farm Loan Act of 1916," 39 Stat. 360, 12 U.S.C.A. 641, as amended; or any debentures issued by or for banks for cooperatives under the "Farm Credit Act of 1933," 48 Stat. 257, 12 U.S.C.A. 131, as amended;
(5) Notes which that are: (a) secured by a first mortgage on
real
estate property held in fee and located in the state,
improved by a unit designed principally for residential use for
not more than four families or by a combination of such that
dwelling unit and business property, the area designed or used for
nonresidential purposes not to exceed fifty per cent of the total
floor area; (b) secured by a first mortgage on real estate
property held in fee and located in the state, improved with a
building designed for residential use for more than four families
or with a building used primarily for business purposes, if the
unpaid principal of the notes secured by such that mortgage does
not exceed ten per cent of the value of the estate or trust or
does not exceed five thousand dollars, whichever is greater; or
(c) secured by a first mortgage on an improved farm held in fee
and located in the state, provided that such the mortgage requires
that the buildings on the mortgaged property shall be well insured
against loss by fire, and so kept, for the benefit of the
mortgagee, until the debt is paid, and provided that the unpaid
principal of the notes secured by the mortgage shall not exceed
fifty per cent of the fair value of the mortgaged real estate
property at the time the investment is made, and the notes shall
be payable not more than five years after the date on which the
investment in them is made; except that the unpaid principal of
the notes may equal sixty per cent of the fair value of the
mortgaged real estate property at the time the investment is made,
and may be payable over a period of fifteen years following the
date of the investment by the fiduciary if regular installment
payments are required sufficient to amortize four per cent or more
of the principal of the outstanding notes per annum and if the
unpaid principal and interest become due and payable at the option
of the holder upon any default in the payment of any installment
of interest or principal upon the notes, or of taxes, assessments,
or insurance premiums upon the mortgaged premises or upon the
failure to cure any such default within any grace period provided
therein in the notes not exceeding ninety days in duration;
(6) Life, endowment, or annuity contracts of legal reserve
life insurance companies regulated by sections 3907.01 to 3907.21,
3909.01 to 3909.17, 3911.01 to 3911.24, 3913.01 to 3913.10,
3915.01 to 3915.15, and 3917.01 to 3917.05 of the Revised Code,
and licensed by the superintendent of insurance to transact
business within the state, provided that the purchase of contracts
authorized by this division shall be limited to executors or the
successors to their powers when specifically authorized by will
and to guardians and trustees, which contracts may be issued on
the life of a ward, a beneficiary of a trust fund, or according to
a will, or upon the life of a person in whom such the ward or
beneficiary has an insurable interest and the contracts shall be
drawn by the insuring company so that the proceeds shall be the
sole property of the person whose funds are so invested;
(7) Notes or bonds secured by mortgages and insured by the
federal housing administrator or debentures issued by such that
administrator;
(8) Obligations issued by a federal home loan bank created under the "Federal Home Loan Bank Act of 1932," 47 Stat. 725, 12 U.S.C.A. 1421, as amended;
(9) Shares and certificates or other evidences of deposits issued by a federal savings and loan association organized and incorporated under the "Home Owners' Loan Act of 1933," 48 Stat. 128, 12 U.S.C.A. 1461, as amended, to the extent and only to the extent that those shares or certificates or other evidences of deposits are insured pursuant to the "Financial Institutions Reform, Recovery, and Enforcement Act of 1989," 103 Stat. 183, 12 U.S.C.A. 1811, as amended;
(10) Bonds issued by the home owners' loan corporation created under the "Home Owners' Act of 1933," 48 Stat. 128, 12 U.S.C.A. 1461, as amended;
(11) Obligations issued by the national mortgage association created under the "National Housing Act," 48 Stat. 1246 (1934), 12 U.S.C.A. 1701, as amended;
(12) Shares and certificates or other evidences of deposits
issued by a domestic savings and loan association organized under
the laws of the state, which association has obtained insurance of
accounts pursuant to the "Financial Institutions Reform, Recovery,
and Enforcement Act of 1989," 103 Stat. 183, 12 U.S.C.A. 1811, as
amended, or as may be otherwise provided by law, only to the
extent that such the evidences of deposits are insured under that
act, as amended;
(13) Shares and certificates or other evidences of deposits
issued by a domestic savings and loan association organized under
the laws of the state, provided that no fiduciary may invest such
the deposits except with the approval of the probate court, and
then in an amount not to exceed the amount which that the
fiduciary is permitted to invest under division (A)(12) of this
section;
(14) In savings accounts in, or certificates or other
evidences of deposits issued by, a national bank located in the
state or a state bank located in and organized under the laws of
the state or a state credit union located and organized under the
laws of the state or a federal credit union located in the state
by depositing the funds in the bank or credit union, and such
the
national or state bank or the federal or state credit union when
itself acting in a fiduciary capacity may deposit the funds in
savings accounts in, or certificates or other evidences of
deposits issued by, its own savings department or any bank
subsidiary corporation owned or controlled by the bank holding
company that owns or controls such
the national or state bank;
provided that no deposit shall be made by any fiduciary,
individual, or corporate, unless the deposits of the depository
bank are insured by the federal deposit insurance corporation
created under the "Federal Deposit Insurance Corporation Act of
1933," 48 Stat. 162, 12 U.S.C. 264, as amended, or provided that
no deposit shall be made by any fiduciary, individual or
corporate, unless the deposits of the depository credit union are
insured by the national credit union administration created under
the "Federal Credit Union Act of 1934," 48 Stat. 1216, 12 U.S.C.
1751, as amended, or the deposits of the depository credit union
are insured by a share guaranty corporation as defined in Chapter
1761. of the Revised Code, and provided that the deposit of the
funds of any one trust in any such those savings accounts in, or
certificates or other evidences of deposits issued by, any one
bank or credit union shall not exceed the sum insured under that
act those acts, as amended, or under Chapter 1761. of the Revised
Code;
(15) Obligations consisting of notes, bonds, debentures, or
equipment trust certificates issued under an indenture, which that
are the direct obligations, or in the case of equipment trust
certificates are secured by direct obligations, of a railroad or
industrial corporation, or a corporation engaged directly and
primarily in the production, transportation, distribution, or sale
of electricity or gas, or the operation of telephone or telegraph
systems or waterworks, or in some combination of them; provided
that the obligor corporation is one which that is incorporated
under the laws of the United States, any state, or the District of
Columbia, or foreign government, and the obligations are rated at
the time of purchase in the highest or next highest classification
established by at least two standard rating services selected from
a list of the standard rating services which that shall be
prescribed by the superintendent of financial institutions;
provided that every such list shall be certified by the
superintendent to the clerk of each probate court in the state,
and shall continue in effect until a different list is prescribed
and certified as provided in this division;
(16) Obligations issued, assumed, or guaranteed by the
international finance corporation or by the international bank for
reconstruction and development, the Asian development bank, the
inter-American development bank, the African development bank, or
other similar development bank in which the president, as
authorized by congress and on behalf of the United States, has
accepted membership, provided that the obligations are rated at
the time of purchase in the highest or next highest classification
established by at least one standard rating service selected from
a list of standard rating services
which that shall be prescribed
by the superintendent of financial institutions;
(17) Securities of any investment company, as defined in and
registered under sections 3 and 8 of the "Investment Company Act
of 1940," 54 Stat. 789, 15 U.S.C.A. 80a-3 and 80a-8, that are
invested exclusively in forms of investment or in instruments that
are fully collateralized by forms of investment in which the
fiduciary is permitted to invest pursuant to divisions (A)(1) to
(16) of this section, provided that, in addition to such those
forms of investment, the investment company may, for the purpose
of reducing risk of loss or of stabilizing investment returns,
engage in hedging transactions.
(B) No administrator or executor may invest funds belonging
to an estate in any asset other than a direct obligation of the
United States that has a maturity date not exceeding one year from
the date of investment, or other than in a short-term investment
fund that is invested exclusively in obligations of the United
States or of its agencies, or primarily in such those obligations
and otherwise only in variable demand notes, corporate money
market instruments including, but not limited to, commercial
paper, or fully collateralized repurchase agreements or other
evidences of indebtedness that are payable on demand or generally
have a maturity date not exceeding ninety-one days from the date
of investment, except with the approval of the probate court or
with the permission of the instruments creating the trust.
(C)(1) In addition to the investments allowed by this
section, a guardian or trustee, with the approval of the court,
may invest funds belonging to the trust in productive real estate
property located within the state, provided that neither the
guardian nor the trustee nor any member of the family of either
has any interest in such the real estate property or in the
proceeds of the purchase price. The title to any real estate
property so purchased by a guardian
must shall be taken in the
name of the ward.
(2) Notwithstanding the provisions of division (C)(1) of this section, the court may permit the funds to be used to purchase or acquire a home for the ward or an interest in a home for the ward in which a member of the ward's family may have an interest. After the filing of the petition by a guardian or a conservator for authority to purchase or acquire a home for the ward or an interest in a home for the ward in which a member of the ward's family may have an interest, the matter shall be set for a hearing before the probate court.
(D) If the fiduciary is a trustee appointed by and accountable to the probate court, the fiduciary shall invest the trust's assets pursuant to the requirements and standards set forth in the Ohio Uniform Prudent Investor Act.
Sec. 2109.371. (A) In addition to those investments made
eligible by section 2109.37 or 2109.372 of the Revised Code,
investments may be made by a fiduciary other than a guardian under
sections 5905.01 to 5905.19 of the Revised Code, and subject to
the restriction placed on an administrator or executor by division
(B) of section 2109.37 of the Revised Code, in any of the
following kinds and classes of securities, provided that it may be
lawfully sold in Ohio and investment is made only in such
those
securities as that would be acquired by prudent persons of
discretion and intelligence in such those matters who are seeking
a reasonable income and the preservation of their capital:
(1) Securities of corporations organized and existing under
the laws of the United States, the District of Columbia, or any
state of the United States, or any foreign government or state,
including, but not limited to, bonds, debentures, notes, equipment
trust obligations, or other evidences of indebtedness, and shares
of common and preferred stocks of such
those corporations;
(2) Subject to division (C) of this section, collective
investment funds established in accordance with section 1111.14 of
the Revised Code or securities of any investment company,
including any affiliated investment company, whether or not the
fiduciary has invested other funds held by it in an agency or
other nonfiduciary capacity in the securities of the same
investment company or affiliated investment company. Such
Those
investments may be made regardless of the eligibility of the
underlying assets held by the fund portfolios of the investment
company.
(3) Bonds or other interest-bearing obligations of any state or territory of the United States, or of any county, city, village, school district, or other legally constituted political taxing subdivision of any state or territory of the United States, not otherwise eligible under division (A)(2) or (3) of section 2109.37 of the Revised Code, or of any foreign government;
(4) Debt or equity securities of foreign corporations that trade on recognized United States domiciled exchanges.
(B) No investment shall be made pursuant to this section
which that, at the time such the investment is made, causes the
aggregate market value of the investments, not made eligible by
section 2109.37 or 2109.372 of the Revised Code, to exceed sixty
per cent of the aggregate market value at that time of all the
property of the fund held by the fiduciary. No sale or other
liquidation of any investment shall be required solely because of
any change in the relative market value of those investments made
eligible by this section and those made eligible by section
2109.37 or 2109.372 of the Revised Code; provided that, in the
event of a sale of investments authorized by this section, the
proceeds from the sale may be reinvested in the kinds and classes
of securities authorized by this section without regard to the
percentage limitation provided in this division. In determining
the aggregate market value of the property of a fund and the
percentage of a fund to be invested under this section, a
fiduciary may rely upon published market quotations as to those
investments for which such
those quotations are available and
upon such the valuations of other investments as that, in the
fiduciary's best judgment, seem fair and reasonable according to
available information.
(C)(1)(a) A fiduciary making an investment of trust funds in securities of an affiliated investment company, or a bank subsidiary corporation or other corporation owned or controlled by the bank holding company that owns or controls the fiduciary, may charge a reasonable fee for investment advisory, brokerage, transfer agency, registrar, management, or other similar services provided to an affiliated investment company. The fee may be in addition to the compensation to which the fiduciary is otherwise entitled to receive from the trust, provided that the fee is charged as a percentage of either asset value or income earned or actual amount charged and is disclosed at least annually by prospectus, account statement, or any other written means to all persons entitled to receive statements of account activity. The fiduciary shall disclose the relationship between the fiduciary and the affiliated investment company, at least annually by account statement, whether or not the fee is charged.
(b) A fiduciary making an investment of trust funds in securities of an affiliated investment company pursuant to division (A)(2) of this section shall, when providing any periodic account statements to the trust fund, report the net asset value of the shares comprising the investment of the trust funds in the affiliated investment company.
(c) If a fiduciary making an investment of trust funds in
securities of an affiliated investment company pursuant to
division (A)(2) of this section invests such those funds in any
mutual fund, the fiduciary shall disclose, in at least ten-point
boldface type, by prospectus, account statement, or any other
written means to all persons entitled to receive statements of
account activity, that the mutual fund is not insured or
guaranteed by the federal deposit insurance corporation or by any
other government-sponsored agency of the federal government or of
this state.
(2) Unless the investment of trust funds in securities of an
affiliated investment company can be made under the terms of the
instrument creating the trust, an exception to the investment of
trust funds in securities of an affiliated investment company may
be filed with the probate court. Any exception filed pursuant to
this division must shall be signed by all persons who would, at
the time the exception is filed, be permitted to file an exception
to an account pursuant to section 2109.33 of the Revised Code and
must
shall state that all such of those persons request that the
current investment of trust funds in securities of an affiliated
investment company be terminated within a reasonable time. If the
probate court determines that the exception complies with the
requirements of this division, the probate court shall establish a
schedule for disposing of any current investments in securities of
an affiliated investment company, and the fiduciary shall cause
the trust to dispose of the investments in accordance with the
schedule. The fiduciary shall not be liable for any loss incurred
by the trust as a result of complying with division (C)(2) of this
section.
(D) As used in this section, "affiliated investment company" and "reasonable fee" have the same meanings as in division (E) of section 1111.13 of the Revised Code.
Sec. 2109.372. (A) As used in this section:
(1) "Short term trust-quality investment fund" means a short term investment fund that meets both of the following conditions:
(a) The fund may be either a collective investment fund established in accordance with section 1111.14 of the Revised Code or a registered investment company, including any affiliated investment company whether or not the fiduciary has invested other funds held by it in an agency or other nonfiduciary capacity in the securities of the same registered investment company or affiliated investment company.
(b) The fund is invested in any one or more of the following manners:
(i) In obligations of the United States or of its agencies;
(ii) In obligations of one or more of the states of the United States or their political subdivisions;
(iii) In obligations of foreign governments or states;
(iv) In variable demand notes, corporate money market instruments including, but not limited to, commercial paper rated at the time of purchase in either of the two highest classifications established by at least one nationally recognized standard rating service;
(iv)(v) Deposits in banks, savings banks, or savings and loan
associations, whose deposits are insured by the federal deposit
insurance corporation, or in credit unions insured by the national
credit union administration or by a credit union share guaranty
corporation established under Chapter 1761. of the Revised Code,
if the rate of interest paid on such those deposits is at least
equal to the rate of interest generally paid by such those banks,
savings banks, savings and loan associations, or credit unions on
deposits of similar terms or amounts;
(v)(vi) In fully collateralized repurchase agreements or
other evidences of indebtedness that are of trust quality and are
payable on demand or have a maturity date consistent with the
purpose of the fund and the duty of fiduciary prudence.
(2) "Registered investment company" means any investment company that is defined in and registered under sections 3 and 8 of the "Investment Company Act of 1940," 54 Stat. 789, 15 U.S.C.A. 80a-3 and 80a-8.
(3) "Affiliated investment company" has the same meaning as in division (E)(1) of section 1111.13 of the Revised Code.
(B) A fiduciary is not required to invest cash that belongs to the trust and may hold that cash for the period prior to distribution if either of the following applies:
(1) The fiduciary reasonably expects to do either of the following:
(a) Distribute the cash to beneficiaries of the trust on a quarterly or more frequent basis;
(b) Use the cash for the payment of debts, taxes, or expenses of administration within the ninety-day period following the receipt of the cash by the fiduciary.
(2) Determined on the basis of the facilities available to the fiduciary and the amount of the income that reasonably could be earned by the investment of the cash, the amount of the cash does not justify the administrative burden or expense associated with its investment.
(C) If a fiduciary wishes to hold funds that belong to the trust in liquid form and division (B) of this section does not apply, the fiduciary may so hold the funds as long as they are temporarily invested as described in division (D) of this section.
(D)(1) A fiduciary may make a temporary investment of cash that the fiduciary may hold uninvested in accordance with division (B) of this section, and shall make a temporary investment of funds held in liquid form pursuant to division (C) of this section, in any of the following investments, unless the governing instrument provides for other investments in which the temporary investment of cash or funds is permitted:
(a) A short term trust-quality investment fund;
(b) Direct obligations of the United States or of its agencies;
(c) A deposit with a bank, savings bank, savings and loan association, or credit union, including a deposit with the fiduciary itself or any bank subsidiary corporation owned or controlled by the bank holding company that owns or controls the fiduciary, whose deposits are insured by the federal deposit insurance corporation, if the rate of interest paid on that deposit is at least equal to the rate of interest generally paid by that bank, savings bank, savings and loan association, or credit union on deposits of similar terms or amounts.
(2) A fiduciary that makes a temporary investment of cash or funds pursuant to division (D)(1) of this section may charge a reasonable fee for the services associated with that investment. The fee shall be in addition to the compensation to which the fiduciary is entitled for ordinary fiduciary services.
(3) Fiduciaries that make one or more temporary investments of cash or funds pursuant to division (D)(1) of this section shall provide to the beneficiaries of the trusts involved, that are currently receiving income or have a right to receive income, a written disclosure of their temporary investment practices and, if applicable, the method of computing reasonable fees for their temporary investment services pursuant to division (D)(2) of this section. Fiduciaries may comply with this requirement in any appropriate written document, including, but not limited to, any periodic statement or account.
(4) A fiduciary that makes a temporary investment of cash or funds in an affiliated investment company pursuant to division (D)(1)(a) of this section shall, when providing any periodic account statements of its temporary investment practices, report the net asset value of the shares comprising the investment in the affiliated investment company.
(5) If a fiduciary that makes a temporary investment of cash or funds in an affiliated investment company pursuant to division (D)(1)(a) of this section invests in any mutual fund, the fiduciary shall provide to the beneficiaries of the trust involved, that are currently receiving income or have a right to receive income, a written disclosure, in at least ten-point boldface type, that the mutual fund is not insured or guaranteed by the federal deposit insurance corporation or by any other government agency or government-sponsored agency of the federal government or of this state.
Sec. 2109.38. Sections 2109.37, 2109.371, and 2109.372 of
the Revised Code do not prohibit a fiduciary from retaining any
part of a trust estate as received by him the fiduciary even
though such that part is not of the class or percentage permitted
to fiduciaries, or from retaining any investment made by him the
fiduciary after such the investment ceases to be of a class or
exceeds the percentage permitted by law, provided the
circumstances are not such as to require the fiduciary to dispose
of such the investment in the performance of his the fiduciary's
duties.
Sec. 2109.39. A fiduciary entitled to a distributive share
of the assets of an estate or trust has the same right as other
beneficiaries to accept or demand distribution in kind and may
retain any security or investment so distributed to him the
fiduciary as though it were a part of the original estate received
by him the fiduciary.
Sec. 2109.40. Unless the instrument creating a trust
forbids, a fiduciary may do all of the things which that an
individual holder might do with respect to securities held by him
the fiduciary, including the exercise or sale of subscription
rights, the acceptance of new stock in the same corporation in
place of the stock held, or in the event of reorganization, sale,
or merger in a different corporation, and with the approval of the
probate court, the investment of additional funds where if
required of all shareholders participating in a reorganization.
Sec. 2109.42. Subject to section 2109.372 of the Revised
Code, a fiduciary who has funds belonging to a trust which that
are not required for payment of current obligations of his the
fiduciary's trust or distribution shall, unless otherwise ordered
by the probate court, invest such those funds within a reasonable
time according to section 2109.37 or 2109.371 of the Revised Code.
On failure to do so, such the fiduciary shall account to the trust
for
such any loss of interest as that is found by the court to be
due to his
the fiduciary's negligence.
Sec. 2109.43. No fiduciary shall make any personal use of
the funds or property belonging to a trust. For a violation of
this section, such the fiduciary and his the fiduciary's bond
shall be liable in an action for any loss occasioned by such that
use and for such any additional amount by way of forfeiture, not
exceeding the amount of the loss occasioned by such the use, as
that may be fixed by the probate court hearing such the case. Such
Those amounts shall be payable for the benefit of the beneficiary,
if living, and to his
the beneficiary's estate if he the
beneficiary is deceased. In addition to the penalties under this
section, the court may remove the fiduciary pursuant to section
2109.24 of the Revised Code for fraudulent conduct or dereliction
of duty related to the fiduciary's personal use or misuse of funds
or property belonging to a trust. However, if all interested
persons consent to the fiduciary's use of the property in a signed
writing filed with the probate court, the fiduciary may make
personal use of property belonging to the trust.
An action under this section shall be brought not later than
one year after the termination of the trust or the discovery of
such that loss.
It is within the court's discretion, upon application, notice to interested persons, and a hearing, to allow the personal use of trust property by the fiduciary.
Sec. 2109.44. (A) Fiduciaries shall not buy from or sell to
themselves and shall not have in their individual capacities any
dealings with the estate, except as expressly authorized by the
instrument creating the trust and then only 1111.13 1111.14 with
the approval of the probate court in each instance. No corporate
fiduciary, , as defined in section 1101.01
of the Revised Code,
that is not subject to examination or regulatory oversight by the
superintendent of financial institutions, the comptroller of the
currency, or the office of thrift supervision shall be permitted
to deal with the estate, any power in the instrument creating the
trust to the contrary notwithstanding. This section does not
prohibit a fiduciary from making an advancement
when if the
advancement has been expressly authorized by the instrument
creating the trust or when if the probate court approves or from
engaging in any act authorized by this chapter.
(B) The fiduciary may petition the court for authority to purchase property of the estate if all of the following requirements are met:
(1) Written consent to the purchase is signed by the following:
(a) Each known heir whose interest in the estate would be affected by the proposed purchase;
(b) Each known devisee whose interest in the estate would be affected by the proposed purchase.
(2) The written consents are filed with the court.
(3) The purchase is shown to be to the advantage of the estate.
(C) The court shall deliver notice of the hearing on the petition to the heirs, devisees, or legatees of the estate or any interested person.
Sec. 2109.45. Before the probate court confirms a sale by an
executor, administrator, guardian, assignee, or trustee made under
an order allowing that officer to make a private sale, the court
shall require that officer to file a statement indicating that the
private sale was made after diligent endeavor to obtain the best
price for the property and that the private sale was at the
highest price he the executor, administrator, guardian, assignee,
or trustee could get obtain for the property.
Sec. 2109.46. When it appears to be for the best interests
of the trust entrusted estate, a fiduciary other than an executor
or administrator may, with the approval of the probate court,
borrow money and mortgage real estate property belonging to the
trust entrusted estate, whether such the real
estate property was
acquired by purchase or by descent and distribution.
The fiduciary proposing so to borrow money must shall file in
the probate court which that appointed him the fiduciary a
petition
complaint describing all of the real estate property in
the trust and stating the nature and amount of the encumbrances
thereon on that real property, the date such those encumbrances
became or will become due, and the rate of interest thereon on
those encumbrances. The petition
complaint shall also contain a
statement of the personal property in the trust, the income from
such the personal property, and the income from the real estate
property in such the trust. Such petition The complaint if filed
by a guardian shall state the names, ages, and residences of the
ward and next of kin known to be a resident in the of this state,
including the spouse of such the ward and persons holding liens on
such the real
estate property unless the liens will be
extinguished, all of whom must shall be made defendants and be
notified of the pendency and prayer of the petition complaint in
such the manner as that the court directs. In addition such
petition, the complaint shall contain a statement of the nature of
the imbecility incompetency or insanity incapacity, if any, of
such the ward, whether temporary or confirmed and its duration.
Except as provided in this section, the defendants and notice
thereto to the defendants shall be the same as though the real
estate property proposed to be mortgaged were being sold by the
fiduciary. The petition
complaint shall set forth the purpose of
the loan, the amount required
therefor for the loan, and such any
other facts as that may be pertinent to the question whether such
the money should be borrowed and shall contain a prayer that the
fiduciary be authorized to mortgage so much of the ward's lands as
may be necessary to secure such the loan.
Upon the filing of such petition the complaint, the
proceedings as to pleadings and proof shall be the same as on
petition a complaint to sell real
estate property belonging to the
trust.
Sec. 2109.47. Before the probate court makes an order
authorizing a guardian to mortgage real estate property for the
purpose of borrowing money to make repairs or improvements, the
court shall appoint three disinterested persons whose duty it
shall be to investigate fully the necessity for and the
advisability of making the repairs or improvements and their
probable cost and to report their conclusions to the court.
Sec. 2109.48. If on the final hearing of a fiduciary's
petition complaint to borrow money and mortgage real estate
property belonging to the trust it appears to be for the best
interests of the trust that the prayer of the petition complaint
be granted, the probate court shall fix the amount necessary to be
borrowed, direct what lands
real property shall be encumbered by
mortgage to secure such that amount, and issue an order to
such
the fiduciary directing him the fiduciary to ascertain and report
to the court the rate of interest and the length of time for which
he the fiduciary can borrow such that amount.
If such the report of the fiduciary and the terms proposed
are satisfactory to the court, they may be accepted and confirmed
and the fiduciary ordered, as fiduciary, to execute a note for
such the amount to be borrowed and a mortgage on the lands real
property so designated, which shall be a valid lien thereon on the
property. The fiduciary in no way shall be personally liable for
the payment of any part of the sum borrowed, but such the
mortgaged lands
real property alone shall be bound therefor for
its payment. Such The court shall direct the distribution of the
fund and the fiduciary shall report to the court, for its
approval, the execution of such the notes and mortgage and his the
fiduciary's distribution of the fund.
Sec. 2109.49. The probate judge, when if the probate judge
deems considers it necessary or upon the written application of
any party interested in the trust estate, may appoint
a suitable
persons person to investigate the administration of the trust or
estate and report to the court. The expense thereof of the
investigation shall be taxed as costs against the party asking for
such the examination or the trust fund, as the court may decree.
This section shall not apply to a corporate trustee which that is
subject to section 1111.28 of the Revised Code.
Sec. 2109.50. Upon complaint made to the probate court of
the county having jurisdiction of the administration of a trust an
estate, a testamentary trust, or a guardianship or of the county
wherein where a person resides against whom the complaint is made,
by a person interested in
such trust the estate, testamentary
trust, or guardianship or by the creditor of a person interested
in such trust the estate, testamentary trust, or guardianship
against any person suspected of having concealed, embezzled, or
conveyed away or of being or having been in the possession of any
moneys,
chattels personal property, or choses in action of such
the estate, testamentary trust, or guardianship, said the court
shall by citation, attachment or warrant, or, if circumstances
require it, by warrant or attachment in the first instance, or
other judicial order compel the person or persons so suspected to
forthwith appear before it to be examined, on oath, touching the
matter of the complaint. Where If necessary such, the citation,
attachment or warrant or other judicial order may be issued into
any county in the state and shall be served and returned by the
officer to whom it is delivered. The officer to whom such the
process is delivered shall be liable for negligence in its service
or return in like a similar manner as sheriffs are liable for
negligence in not serving or returning a capias issued upon an
indictment. Before issuing an extra-county citation, attachment or
warrant or other judicial order, the probate judge may require the
complainant to post security with the probate court in such an
amount and in such a form as that the probate judge shall find
finds acceptable in order to cover the costs of the proceeding
under this section, including in such those costs a reasonable
allowance for the travelling travel expenses of the person or
persons against whom an extra-county citation, attachment or
warrant or other judicial order is to be issued. Such The security
may be in the form of a bond, the amount, terms, conditions, and
sureties of which shall be subject to the approval of the probate
judge.
The probate court may initiate proceedings on its own motion.
The probate court shall forthwith promptly proceed to hear
and determine the matter.
The examinations, including questions and answers, shall be reduced to writing, signed by the party examined, and filed in the probate court.
If required by either party, the probate court shall swear
such the witnesses as may be who are offered by either party
touching the matter of such the complaint and cause the
examination of every such witness, including questions and
answers, to be reduced to writing, signed by the witness, and
filed in the probate court.
All costs of such the proceedings, including the reasonable
travelling travel expenses of a person against whom an
extra-county citation, attachment or warrant or judicial order is
issued, shall be assessed against and paid by the party making the
complaint, except as provided by section 2109.52 of the Revised
Code.
Sec. 2109.51. If a person compelled under section 2109.50 of
the Revised Code to appear for examination refuses to answer
interrogatories propounded, the probate court shall commit such
the person to the county jail, and such the person shall remain in
close custody until he the person submits to the court's order.
Sec. 2109.52. When passing on a complaint made under section
2109.50 of the Revised Code, the probate court shall determine, by
the verdict of a jury if either party requires it or without if
not required, whether the person accused is guilty of having
concealed, embezzled, conveyed away, or been in the possession of
moneys, chattels personal property, or choses in action of the
trust estate, testamentary trust, or guardianship. If such the
person is found guilty, the probate court shall assess the amount
of damages to be recovered or the court may order the return of
the specific thing concealed or embezzled or may order restoration
in kind. The probate court may issue a citation or other judicial
order into any county in this state, which citation that shall be
served and returned as provided in section 2109.50, requiring of
the Revised Code. The citation or other judicial order shall
require any person to appear before it who claims any interest in
the assets alleged to have been concealed, embezzled, conveyed, or
held in possession and at such to appear before the court. At the
hearing, the court may hear and determine questions of title
relating to such those assets. In all cases, except when the
person found guilty is the fiduciary, the probate court shall
forthwith render judgment in favor of the fiduciary or if there is
no fiduciary in this state, the probate court shall render
judgment in favor of the state, against the person found guilty,
for the amount of the moneys or the value of the chattels personal
property or choses in action concealed, embezzled, conveyed away,
or held in possession, together with ten per cent penalty and all
costs of such the proceedings or complaint; except that such the
judgment shall be reduced to the extent of the value of any thing
specifically restored or returned in kind as provided in this
section.
If the person found guilty is the fiduciary, the probate
court shall forthwith render judgment in favor of the state
against him the fiduciary for such the amount of the moneys or the
value of the personal property or choses in action concealed,
embezzled, conveyed away, or held in possession, together with
penalty and costs as provided in this section.
Sec. 2109.53. If a judgment is rendered against a fiduciary
under section 2109.52 of the Revised Code, he the fiduciary shall
forthwith be removed by the probate court and that part of the
trust not already administered shall be committed to some other
person. If any portion of the estate, testamentary trust, or
guardianship remains to be administered by the probate court at
the time of the removal of the fiduciary, the court shall appoint
a new fiduciary to continue the administrative process. A
fiduciary so that is removed shall not receive compensation for
acting as fiduciary and must shall be charged in his account with
for the amount of
such the judgment. Such The fiduciary's property
also shall be liable for the satisfaction of the judgment on
execution issued thereon on the judgment by his the fiduciary's
successor.
Sec. 2109.54. The fiduciary in whose favor a judgment has
been rendered by the probate court under section 2109.52 of the
Revised Code shall forthwith deliver to the clerk of the court of
common pleas a certificate of such
that judgment in accordance
with section 2329.04 of the Revised Code, which certificate the.
The probate judge court shall make out complete and deliver the
certificate to such the fiduciary on demand. The clerk shall
forthwith issue an execution of the court of common pleas for the
amount of the judgment and the costs that have accrued or that may
accrue thereon on the judgment. Thenceforth proceedings on
execution shall be the same as if the judgment had been rendered
in such that court of common pleas.
Sec. 2109.55. If a judgment is rendered in the name of the
state under section 2109.52 of the Revised Code and there is no
fiduciary within this state, the prosecuting attorney shall cause
the certificate provided for in section 2109.54 of the Revised
Code to be filed in the clerk's office and proceed thereon to
execution on the judgment as provided in such that section. Such
The prosecuting attorney shall pay the money realized upon such
the execution to the county treasurer for the use of such trust
the estate, testamentary trust, or guardianship, reserving such
the compensation to himself as
the prosecuting attorney that the
probate court allows.
Sec. 2109.56. All gifts, grants, or conveyances of land,
tenements, hereditaments real property, rents, or chattels
personal property and all bonds, judgments, or executions made or
obtained with intent to avoid the purpose of the proceedings set
forth in sections 2109.50 to 2109.55, inclusive, of the Revised
Code, or in contemplation of any examination or complaint provided
for by such those sections, shall be void.
Sec. 2109.57. In any action or proceeding pending in a court
of record, if it is made to appear to the court that any person
entitled to all or a part of the proceeds of property sold in such
that action or proceeding is unknown or is a nonresident and not
represented in such the action or proceeding or that the person
entitled cannot, at the time, definitely be ascertained, the
probate court may appoint a trustee to whom the notes and
mortgages for the unpaid part shall be made, delivered, and paid
and to receive, hold, and manage such
the proceeds or part thereof
of the proceeds. Such The trustee shall collect the unpaid part of
the proceeds of the property sold, by action or otherwise, and
shall pay over such
that fund only on the order of the probate
court appointing him the trustee.
Payment to such the trustee shall be a bar to any claim
thereafter made by any person and the persons or corporations
paying such the money in no case shall be required to see to the
application of the money paid.
If a person entitled to any portion of the money held by such
the trustee fails for seven or more years after such the trustee's
appointment to make claim to the money and to present the proof
necessary to entitle such the person to such the money, the
prosecuting attorney of the county in which such the trustee was
appointed shall collect it, with the interest accrued thereon on
the money, from such the trustee and pay it into such the county's
treasury, to be placed to the credit of the general fund.
When Upon application to the probate court which that
appointed such the trustee is satisfied that a and presentment of
the proof necessary to entitle the person
who appears and claims
to the moneys paid into the county treasury has a right to receive
them, money, the court shall order the payment of the money to the
person in whole or part, less the costs of collection by the
prosecuting attorney, such court shall order the payment thereof
to the person shown to be entitled to such moneys. Such. The
person, on the judge's certificate, shall be given a warrant
therefor for the money by the county auditor.
Sec. 2109.58. Each fiduciary as to whom definite provision
is not made in sections 2111.14 and 2115.02 of the Revised Code
shall make and file within three months after his the fiduciary's
appointment a full inventory of the real and personal property
belonging to the trust be entrusted with the fiduciary, its value,
and the value of the yearly rent of the real property.
Except as provided by section 2115.16 of the Revised Code,
exceptions to the inventory of a fiduciary may be filed at any
time within six months after the return of the inventory by any
person interested in the trust entrusted property or in any of the
property included in the inventory, but the six-month period shall
not apply in case of fraud or concealment of assets. At the
hearing, the fiduciary and any witness may be examined under oath.
The probate court shall enter its finding on the journal and tax
the costs as may be equitable.
Sec. 2109.59. If a fiduciary, upon demand, refuses or
neglects to pay any creditor whose claim has been allowed by the
fiduciary and not subsequently rejected or to pay any creditor or
make distribution to any person interested in the estate whose
claim or interest has been established by judgment, decree, or
order of court, including an order of distribution, such the
creditor or other person may file a petition against the fiduciary
in the probate court from which the fiduciary received his the
fiduciary's appointment to enforce such
the payment or
distribution, briefly setting forth therein in the petition the
amount and nature of
his the creditor's or other person's claim or
interest. Such
The petition shall not be filed against an executor
or administrator until the expiration of the period prescribed in
section 2117.30 of the Revised Code.
When such the petition is filed, the probate court shall
issue a citation to the fiduciary setting forth the filing of the
petition and the nature of the claim of the petitioner and
commanding such the fiduciary to appear before the court on the
return day thereof to answer and show cause why a judgment should
not be rendered or order entered against him the fiduciary. Such
The citation shall be returnable not less than twenty nor more
than forty days from its date and shall be served and returned by
an officer as in the case of summons. Such The citation may issue
to any county in the state.
On the return of the citation, the cause shall be set for
hearing, unless for good cause shown it is continued. The probate
court may hear and determine all questions necessary to ascertain
and fix the amount due from the fiduciary to the petitioner and
render
such the judgment or make such the order as that may be
proper. If necessary, such the court may hear, determine, and
settle the rights and claims of all parties interested in the
subject matter of the petition. For such
that purpose the probate
court may cause
allow all parties in interest to be made parties
to such the petition by amended, supplemental, or crosspetition
cross-petition. The court shall cause notice to be served on all
such the parties in the manner provided in this section for
service of the citation upon the fiduciary.
In any such proceeding under this section, the sureties on
the bond of the fiduciary, if made parties thereto to the
proceeding, may make any defense that the fiduciary could make and
the court may render such the judgment or make such the order with
respect to the sureties
as that may be proper.
Sec. 2109.60. When a proceeding set forth in section 2109.59
of the Revised Code is pending in the probate court, such the
court, on motion of any party
thereto or on the court's own
motion, may reserve and send such transfer the cause to the court
of common pleas which, and the court of common pleas shall hear,
settle, and determine all issues as provided in such that section.
In case of such reservation the transfer, the probate court shall
prepare a transcript of the proceedings in the cause, so far as it
has progressed, which that, with the petition and other papers
therein in the proceedings, forthwith shall be filed with the
clerk of the court of common pleas.
Sec. 2109.61. An action may be prosecuted on the bond of a
fiduciary against any one or more of the obligors thereof on the
bond by any person who has been injured by reason of the breach of
any condition of the bond. Such The action shall be prosecuted for
the benefit of all persons who are interested in the estate and
who have been similarly injured. Any such person or any obligor on
the bond who is not already a party to the action may intervene
therein in the action or be made a party thereto to the action by
supplemental, amended, or crosspetition cross-petition. Notice of
any action or proceeding against the bonded fiduciary shall be
given to the surety.
If a surety on the bond of a fiduciary is not made a party to
an action or proceeding against such the fiduciary, the fact that
a judgment was rendered or an order was entered against the
fiduciary shall constitute only prima-facie evidence of the
justice and validity of the claim in an action subsequently
brought against the sureties on the bond of the fiduciary.
Sec. 2109.62. (A)(1) Upon the filing of a motion by a trustee with the court that has jurisdiction over the trust, upon the provision of reasonable notice to all beneficiaries who are known and in being and who have vested or contingent interests in the trust, and after holding a hearing, the court may terminate the trust, in whole or in part, if it determines that all of the following apply:
(a) It is no longer economically feasible to continue the trust.
(b) The termination of the trust is for the benefit of the beneficiaries.
(c) The termination of the trust is equitable and practical.
(d) The current value of the trust is less than one hundred thousand dollars.
(2) The existence of a spendthrift or similar provision in a trust instrument or will does not preclude the termination of a trust pursuant to this section.
(B) If property is to be distributed from an estate being
probated to a trust and the termination of the trust pursuant to
this section does not clearly defeat the intent of the testator,
the probate court has jurisdiction to order the outright
distribution of the property or to make the property custodial
property under sections 5814.01 to 5814.09 of the Revised Code. A
probate court may so order whether the application motion for the
order is made by an inter vivos trustee named in the will of the
decedent or by a testamentary trustee.
(C) Upon the termination of a trust pursuant to this section, the probate court shall order the distribution of the trust estate in accordance with any provision specified in the trust instrument for the premature termination of the trust. If there is no provision of that nature in the trust instrument, the probate court shall order the distribution of the trust estate among the beneficiaries of the trust in accordance with their respective beneficial interests and in a manner that the court determines to be equitable. For purposes of ordering the distribution of the trust estate among the beneficiaries of the trust under this division, the court shall consider all of the following:
(1) The existence of any agreement among the beneficiaries with respect to their beneficial interests;
(2) The actuarial values of the separate beneficial interests of the beneficiaries;
(3) Any expression of preference of the beneficiaries that is contained in the trust instrument.
Sec. 2111.02. (A) When If found necessary, the probate court
on its own motion or on application by any interested party shall
appoint, subject to divisions (C) and (D) of this section and to
section 2109.21 and division (B) of section 2111.121 of the
Revised Code, a guardian of the person, the estate, or both, of a
minor or incompetent, provided the person for whom the guardian is
to be appointed is a resident of the county or has a legal
settlement in the county and, except in the case of a minor, has
had the opportunity to have the assistance of counsel in the
proceeding for the appointment of such that guardian. An
interested party includes, but is not limited to, a person
nominated in a durable power of attorney as described in division
(D) of section 1337.09 of the Revised Code or in a writing as
described in division (A) of section 2111.121 of the Revised Code.
Except when the guardian of an incompetent is an agency under
contract with the department of developmental disabilities for the
provision of protective services under sections 5123.55 to 5123.59
of the Revised Code, the guardian of an incompetent, by virtue of
such the appointment as guardian, shall be the guardian of the
minor children of the guardian's ward, unless the court appoints
some other person as their guardian.
When the primary purpose of the appointment of a guardian is,
or was, the collection, disbursement, or administration of moneys
awarded by the veterans administration to the ward, or assets
derived from such those moneys, no court costs shall be charged in
the proceeding for the appointment or in any subsequent
proceedings made in pursuance of the appointment, unless the value
of the estate, including the moneys then due under the veterans
administration award, exceeds one thousand five hundred dollars.
(B)(1) If the probate court finds it to be in the best interest of an incompetent or minor, it may appoint pursuant to divisions (A) and (C) of this section, on its own motion or on application by an interested party, a limited guardian with specific limited powers. The sections of the Revised Code, rules, and procedures governing guardianships apply to a limited guardian, except that the order of appointment and letters of authority of a limited guardian shall state the reasons for, and specify the limited powers of, the guardian. The court may appoint a limited guardian for a definite or indefinite period. An incompetent or minor for whom a limited guardian has been appointed retains all of the incompetent's or minor's rights in all areas not affected by the court order appointing the limited guardian.
(2) If a guardian appointed pursuant to division (A) of this section is temporarily or permanently removed or resigns, and if the welfare of the ward requires immediate action, at any time after the removal or resignation, the probate court may appoint, ex parte and with or without notice to the ward or interested parties, an interim guardian for a maximum period of fifteen days. If the court appoints the interim guardian ex parte or without notice to the ward, the court, at its first opportunity, shall enter upon its journal with specificity the reason for acting ex parte or without notice, and, as soon as possible, shall serve upon the ward a copy of the order appointing the interim guardian. For good cause shown, after notice to the ward and interested parties and after hearing, the court may extend an interim guardianship for a specified period, but not to exceed an additional thirty days.
(3) If a minor or incompetent has not been placed under a
guardianship pursuant to division (A) of this section and if an
emergency exists, and if it is reasonably certain that immediate
action is required to prevent significant injury to the person or
estate of the minor or incompetent, at any time after it receives
notice of the emergency, the court, ex parte, may issue any order
that it considers necessary to prevent injury to the person or
estate of the minor or incompetent, or may appoint an emergency
guardian for a maximum period of seventy-two hours. A written copy
of any order issued by a court under this division shall be served
upon the incompetent or minor as soon as possible after its
issuance. Failure to serve such an that order after its issuance
or prior to the taking of any action under its authority does not
invalidate the order or the actions taken. The powers of an
emergency guardian shall be specified in the letters of
appointment, and shall be limited to those powers that are
necessary to prevent injury to the person or estate of the minor
or incompetent. If the court acts ex parte or without notice to
the minor or incompetent, the court, at its first opportunity,
shall enter upon its journal a record of the case and, with
specificity, the reason for acting ex parte or without notice. For
good cause shown, after notice to the minor or incompetent and
interested parties, and after hearing, the court may extend an
emergency guardianship for a specified period, but not to exceed
an additional thirty days.
(C) Prior to the appointment of a guardian or limited guardian under division (A) or (B)(1) of this section, the court shall conduct a hearing on the matter of the appointment. The hearing shall be conducted in accordance with all of the following:
(1) The proposed guardian or limited guardian shall appear at
the hearing and, if appointed, shall swear under oath that the
proposed guardian or limited guardian has made and will continue
to make diligent efforts to file a true inventory in accordance
with section 2111.14 of the Revised Code and find and report all
assets belonging to the estate of the ward and that the proposed
guardian or limited guardian faithfully and completely will
fulfill the other duties of guardian, including the filing of
timely and accurate reports and accountings;.
(2) If the hearing is conducted by a referee magistrate, the
procedures set forth in Civil Rule 53 shall be followed;.
(3) If the hearing concerns the appointment of a guardian or
limited guardian for an alleged incompetent, the burden of proving
incompetency shall be by clear and convincing evidence;.
(4) Upon request of the applicant, the alleged incompetent
for whom the appointment is sought or the alleged incompetent's
counsel, or any interested party, a recording or record of the
hearing shall be made;.
(5) Evidence of a less restrictive alternative to
guardianship may be introduced, and when introduced, shall be
considered by the court;.
(6) The court may deny a guardianship based upon a finding
that a less restrictive alternative to guardianship exists;.
(7) If the hearing concerns the appointment of a guardian or limited guardian for an alleged incompetent, the alleged incompetent has all of the following rights:
(a) The right to be represented by independent counsel of the alleged incompetent's choice;
(b) The right to have a friend or family member of the alleged incompetent's choice present;
(c) The right to have evidence of an independent expert evaluation introduced;
(d) If the alleged incompetent is indigent, upon the alleged incompetent's request:
(i) The right to have counsel and an independent expert evaluator appointed at court expense;
(ii) If the guardianship, limited guardianship, or standby guardianship decision is appealed, the right to have counsel appointed and necessary transcripts for appeal prepared at court expense.
(D)(1) When If a person has been nominated to be a guardian
of the estate of a minor in or pursuant to a durable power of
attorney as described in division (D) of section 1337.09 of the
Revised Code or a writing as described in division (A) of section
2111.121 of the Revised Code, the person nominated has preference
in appointment over a person selected by the minor. A person who
has been nominated to be a guardian of the person of a minor in or
pursuant to a durable power of attorney or writing of that nature
does not have preference in appointment over a person selected by
the minor, but the probate court may appoint the person named in
the durable power of attorney or the writing, the person selected
by the minor, or another person as guardian of the person of the
minor.
(2) A person nominated as a guardian of an incompetent adult child pursuant to section 1337.09 or 2111.121 of the Revised Code shall have preference in appointment over a person applying to be guardian if the person nominated is competent, suitable, and willing to accept the appointment, and if the incompetent adult child does not have a spouse or an adult child and has not designated a guardian prior to the court finding the adult child incompetent.
Sec. 2111.021. A competent adult who is physically infirm
may petition the probate court of the county in which he the
petitioner resides, to place, for a definite or indefinite period
of time, his
the petitioner's person, any or all of his the
petitioner's real or personal property, or both under a
conservatorship with the court. A petitioner either may grant
specific powers to the conservator or court or may limit any
powers granted by law to the conservator or court, except that the
petitioner may not limit the powers granted to the court by this
section and may not limit the requirement for bond as determined
by the court. The petition shall state whether the person of the
competent adult will be placed under the conservatorship, shall
state with particularity all real and personal property that will
be placed under the conservatorship, shall state the powers
granted and any limitation upon the powers of the conservator or
court, and shall state the name of a proposed suitable
conservator.
After a hearing, if the court finds that the petition was
voluntarily filed and that the proposed conservator is suitable,
the court shall issue an order of conservatorship. Upon issuance
of the order, all sections of the Revised Code governing a
guardianship of the person, the estate, or both, whichever is
involved, except those sections the application of which
specifically is limited by the petitioner, and all rules and
procedures governing such a guardianship of the person, the
estate, or both, shall apply to the conservatorship, including,
but not limited to, applicable bond and accounting requirements.
A conservatorship shall terminate upon a judicial determination of incompetency, the death of the petitioner, the order of the probate court, or the execution of a written termination notice by the petitioner. A termination notice shall take effect upon execution by the petitioner, and shall be filed with the court and served upon the conservator. A termination notice executed by a petitioner relative to a conservatorship of the estate and the termination of a conservatorship of the estate based upon a termination notice are void unless the termination notice is filed with the court within fourteen days after its execution. Modification of the powers of a conservator or the court may be made by the petitioner upon motion to the court at any time during the conservatorship. Neither the establishment of a conservatorship nor the filing of a petition for conservatorship with the probate court shall be considered as evidence of mental impairment under section 2111.01 of the Revised Code.
Upon motion to the probate court and a showing of good cause, the court may make confidential, or remove from confidential status, any file, record, petition, motion, account, or paper, except for an index, docket, or journal, that pertains to a conservatorship and that is in the possession of the court.
Sec. 2111.031. In connection with an application for the
appointment of a guardian for an alleged incompetent, the court
may appoint physicians and other qualified persons to examine,
investigate, or represent the alleged incompetent, to assist the
court in deciding whether a guardianship is necessary. If the
person is determined to be an incompetent and a guardian is
appointed for him the person, the costs, fees, or expenses
incurred to so assist the court shall be charged either against
the estate of the person or against the applicant, unless the
court determines, for good cause shown, that the costs, fees, or
expenses are to be recovered from the county, in which case they
shall be charged against the county. If the person is not
determined to be an incompetent or a guardian is not appointed for
him the person, the costs, fees, or expenses incurred to so assist
the court shall be charged against the applicant, unless the court
determines, for good cause shown, that the costs, fees, or
expenses are to be recovered from the county, in which case they
shall be charged against the county.
A court may require the applicant to make an advance deposit of an amount that the court determines is necessary to defray the anticipated costs of examinations of an alleged incompetent and to cover fees or expenses to be incurred to assist it in deciding whether a guardianship is necessary.
This section does not affect or apply to the duties of a probate court investigator under sections 2111.04 and 2111.041 of the Revised Code.
Sec. 2111.04. (A) Except for an interim or emergency guardian appointed under division (B)(2) or (3) of section 2111.02 of the Revised Code, no guardian of the person, the estate, or both shall be appointed until at least seven days after the probate court has caused written notice, setting forth the time and place of the hearing, to be served as follows:
(1) In the appointment of the guardian of a minor, notice shall be served as follows:
(a) Upon the minor, if over the age of fourteen, by personal service;
(b) Upon each parent of the minor whose name and address is known or with reasonable diligence can be ascertained, provided the parent is free from disability other than minority;
(c) Upon the next of kin of the minor who are known to reside in this state, if there is no living parent, the name and address of the parent cannot be ascertained, or the parent is under disability other than minority;
(d) Upon the person having the custody of the minor.
(2) In the appointment of the guardian of an incompetent, notice shall be served as follows:
(a)(i) Upon the person for whom appointment is sought by
personal service, by a probate court investigator, or in the
manner provided in division (A)(2)(a)(ii) of this section. The
notice shall be in boldface type and shall inform the alleged
incompetent, in boldface type, of his the alleged incompetent's
rights to be present at the hearing, to contest any application
for the appointment of a guardian for his the alleged
incompetent's person, estate, or both, and to be represented by an
attorney and of all of the rights set forth in division (C)(7) of
section 2111.02 of the Revised Code.
(ii) If the person for whom appointment is sought is a resident of, or has a legal settlement in, the county in which the court has jurisdiction, but is absent from that county, the probate court may designate, by order, a temporary probate court investigator, in lieu of a regular probate court investigator appointed or designated under section 2101.11 of the Revised Code, to make the personal service of the notice described in division (A)(2)(a)(i) of this section upon the person for whom appointment is sought.
(b) Upon the next of kin of the person for whom appointment is sought who are known to reside in this state.
(B) After service of notice in accordance with division (A) of this section and for good cause shown, the court may appoint a guardian prior to the time limitation specified in that division.
(C) Notice may not be waived by the person for whom the appointment is sought.
(D) From the service of notice until the hearing, no sale, gift, conveyance, or encumbrance of the property of an alleged incompetent shall be valid as to persons having notice of the proceeding.
Sec. 2111.041. (A) At the time of the service of notice upon
an alleged incompetent, as required by division (A)(2)(a) of
section 2111.04 of the Revised Code, the court shall require a
regular probate court investigator appointed or designated under
section 2101.11 of the Revised Code or appoint a temporary probate
court investigator to investigate the circumstances of the alleged
incompetent, and, to the maximum extent feasible, to communicate
to the alleged incompetent in a language or method of
communication that he the alleged incompetent can understand,
his
the alleged incompetent's rights as specified in that division,
and subsequently to file with the court a report that contains all
of the following:
(1) A statement indicating that the notice was served and
describing the extent to which the alleged incompetent's rights to
be present at the hearing, to contest any application for the
appointment of a guardian for his the alleged incompetent's
person, estate, or both, and to be represented by an attorney were
communicated to him the alleged incompetent in a language or
method of communication understandable to the alleged incompetent;
(2) A brief description, as observed by the investigator, of the physical and mental condition of the alleged incompetent;
(3) A recommendation regarding the necessity for a guardianship or a less restrictive alternative;
(4) A recommendation regarding the necessity of appointing pursuant to section 2111.031 of the Revised Code, an attorney to represent the alleged incompetent.
(B) The report that is required by division (A) of this section shall be made a part of the record in the case and shall be considered by the court prior to establishing any guardianship for the alleged incompetent.
Sec. 2111.06. If the powers of the person appointed as
guardian of a minor or incompetent are not limited by the order of
appointment, such the person shall be guardian both of the person
and estate of the ward. In every instance the court shall appoint
the same person as guardian of the person and estate of
any such
the ward, unless in the opinion of the court the interests of the
ward will be promoted by the appointment of different persons as
guardians of the person and of the estate.
A guardian of the person of a minor shall be appointed as to
a minor having neither no father nor or mother, or whose parents
are unsuitable persons to have the custody and tuition of such the
minor and to provide for the education of the minor as required by
section 3321.01 of the Revised Code, or whose interests, in the
opinion of the court, will be promoted
thereby by the appointment
of a guardian. A guardian of the person shall have the custody and
provide for the maintenance of the ward, and if the ward is a
minor, such the guardian shall also provide for the education of
such
the ward as required by section 3321.01 of the Revised Code.
Before exercising its jurisdiction to appoint a guardian of a minor, the court shall comply with the jurisdictional standards of sections 3127.01 to 3127.53 of the Revised Code.
Sec. 2111.07. Each person appointed guardian of the person
and estate of a minor shall have the custody and tuition of his
the ward, the obligation to provide for the education of the ward
as required under section 3321.01 of the Revised Code, and the
management of
such the ward's estate during minority, unless such
the guardian is removed or discharged from such that trust or the
guardianship terminates from any of the causes specified in
Chapters 2101. to 2131., inclusive, of the Revised Code.
Sec. 2111.09. Unless expressly appointed or designated to
act both as guardian and executor by a last will in writing, no
person who is or has been an administrator or executor of a last
will shall, prior to the approval of
his the person's final
account as such executor or administrator, be appointed a guardian
of the person and estate or of the estate only of a ward who is
interested in the estate administered upon or entitled to an
interest under such the will, except that a surviving spouse may
be executor or administrator of the deceased spouse's estate and
also guardian of the person and estate or of the estate only of a
minor child of such the surviving spouse, whether or not such
the
minor child is interested in the estate of the deceased spouse.
But However, an executor or an administrator may be appointed a
guardian of the person only of a ward.
Sec. 2111.091. No attorney who represents any other person
other than himself and who is appointed as a guardian under this
chapter or under any other provision of the Revised Code shall do
either of the following:
(A) Act as a person with co-responsibility for any
guardianship asset for which the guardian he represents is
responsible;
(B) Be a cosignatory on any financial account related to the guardianship, including any checking account, savings account, or other banking or trust account.
Sec. 2111.12. (A) A minor over the age of fourteen years may
select a guardian who shall be appointed if a suitable person. If
such the minor fails to select a suitable person, an appointment
may be made without reference to the minor's wishes. The minor
shall not select one person to be the guardian of the minor's
estate only and another to be the guardian of the person only,
unless the court which
that appoints the guardian is of the
opinion that the interests of such the minor will thereby be
promoted by that selection.
(B) A surviving parent by last a will in writing may appoint
a guardian for any of the surviving parent's children, whether
born at the time of making the will or afterward, to continue
during the minority of the child or for a less time.
When the father or mother of a minor names a person as
guardian of the estate of such the minor in a will, the person
named shall have preference in appointment over the person
selected by such the minor. A person named in such a that will as
guardian of the person of such the minor shall have no preference
in appointment over the person selected by such the minor, but in
such that event the probate court may appoint the person named in
the will, the person selected by the minor, or some other person.
Whenever a testamentary guardian is appointed, the testamentary guardian's duties, powers, and liabilities in all other respects shall be governed by the law regulating guardians not appointed by will.
(C) A parent pursuant to a durable power of attorney as
described in division (D) of section 1337.09 or a writing as
described in division (A) of section 2111.121 of the Revised Code
may nominate a person to be a guardian for one or more of the
parent's minor children, whether born at the time of the making of
the petition nomination or afterward.
Sec. 2111.131. (A) The probate court may enter an order that authorizes a person under a duty to pay or deliver money or personal property to a minor who does not have a guardian of the person and estate or a guardian of the estate, to perform that duty in amounts not exceeding five thousand dollars annually, by paying or delivering the money or property to any of the following:
(1) The guardian of the person only of the minor;
(2) The minor's natural guardians, if any, as determined pursuant to section 2111.08 of the Revised Code;
(3) The minor's own self minor;
(4) Any person who has the care and custody of the minor and with whom the minor resides, other than a guardian of the person only or a natural guardian;
(5) A financial institution incident to a deposit in a federally insured savings account in the sole name of the minor;
(6) A custodian designated by the court in its order, for the minor under sections 5814.01 to 5814.09 of the Revised Code.
(B) An order entered pursuant to division (A) of this section authorizes the person or entity specified in it, to receive the money or personal property on behalf of the minor from the person under the duty to pay or deliver it, in amounts not exceeding five thousand dollars annually. Money or personal property so received by guardians of the person only, natural guardians, and custodians as described in division (A)(4) of this section may be used by them only for the support, maintenance, or education of the minor involved. The order of the court is prima-facie evidence that a guardian of the person only, a natural guardian, or a custodian as described in division (A)(4) of this section has the authority to use the money or personal property received.
(C) A person who pays or delivers moneys or personal property in accordance with a court order entered pursuant to division (A) of this section is not responsible for the proper application of the moneys or property by the recipient.
Sec. 2111.14. (A) In addition to his a guardian's other
duties, every guardian appointed to take care of the estate of a
ward shall have the following duties:
(A)(1) To make and file within three months after his the
guardian's appointment a full inventory of the real and personal
property of the ward, its value, and the value of the yearly rent
of the real property, provided that, if the guardian fails to file
the inventory for thirty days after he has having been notified of
the expiration of the time by the probate judge, the judge shall
remove him the guardian and appoint a successor;
(B)(2) To manage the estate for the best interest of the
ward;
(C)(3) To pay all just debts due from the ward out of the
estate in his hands the possession or under the control of the
guardian, collect all debts due to the ward, compound doubtful
debts, and appear for and defend, or cause to be defended, all
suits against the ward;
(D)(4) To obey all orders and judgments of the courts
touching the guardianship;
(E)(5) To bring suit for the ward when a suit is in the best
interests of the ward;
(F)(6) To settle and adjust, when necessary or desirable, the
assets that he the guardian may receive in kind from an executor
or administrator to the greatest advantage of the ward. Before a
settlement and adjustment is valid and binding, it shall be
approved by the probate court and the approval shall be entered on
its journal. The guardian also shall have the approval of the
probate court to hold the assets as received from the executor or
administrator or to hold what may be received in the settlement
and adjustment of those assets.
(B) No guardian appointed to take care of the estate of a
ward may open a safety deposit box held in the name of the ward,
until the contents of the box have been audited by an employee of
the county auditor in the presence of the guardian and until a
verified report of the audit has been filed by the auditor with
the probate court, which. The court then shall issue a release to
the guardian permitting the guardian to have access to the safety
deposit box of the ward.
Sec. 2111.141. The court, by order or rule, may require that
any inventory filed by a guardian pursuant to section 2111.14 of
the Revised Code be supported by evidence that the inventory is a
true and accurate inventory of the estate of the ward of the
guardian, which. The evidence may include, but is not limited to,
prior income tax returns, bank statements, and social security
records of the ward or other documents that are relevant to
determining the accuracy of the inventory. In order to verify the
accuracy of an inventory, the court may order a guardian to
produce any additional evidence that may tend to prove that the
guardian is in possession of or has knowledge of assets that
belong to the estate of his the ward and that have not been
included in the guardianship inventory, which. The additional
evidence may include, but is not limited to, the guardian's income
tax returns and bank statements and any other documents that are
relevant to determining the accuracy of an inventory. The court
may assign court employees or appoint an examiner to verify an
inventory filed by a guardian. Upon appointment, the assigned
court employees or appointed examiner shall conduct an
investigation to verify the accuracy of the inventory filed by the
guardian. Upon order of the court, the assigned court employees or
appointed examiner may subpoena any documents necessary for his
the investigation. Upon completion of the investigation, the
assigned court employees or appointed examiner shall file a report
with the court. The court shall hold a hearing on the report with
notice to all interested parties. At the hearing, the guardian
shall have the right to examine and cross-examine any assigned
court employees or appointed examiner who conducted the
investigation and filed the report that is the subject of the
hearing. The court shall charge any costs associated with the
verification of an inventory filed by a guardian against the
estate of the ward, except that, if the court determines that the
guardian wrongfully withheld, or aided in the wrongful
withholding, of assets from the inventory filed by the guardian,
the court shall charge the costs against the guardian.
Sec. 2111.16. Unless previously authorized by the court, no
voucher that is signed or purports to be signed by the ward shall
be received from or allowed as a credit in the settlement of a
guardian's account
which is signed or purports to be signed by his
ward.
Sec. 2111.17. A guardian may sue in his the guardian's own
name, describing himself as
the guardian as suing on behalf of the
ward for whom he sues. When
his the guardianship ceases, actions
or proceedings then pending shall not abate, if the right
survives.
His The guardian's successor as guardian, the executor
or administrator of the ward, or the ward
himself, if the
guardianship has terminated other than by the ward's death, shall
be made party to the suit or other proceeding as the case
requires, in the same manner an executor or administrator is made
a party to a similar suit or proceeding where if the plaintiff
dies during its pendency.
Sec. 2111.181. When If personal injury, damage to tangible
or intangible property, or damage or loss on account of personal
injury or damage to tangible or intangible property is caused to a
minor, who claims to be emancipated, by wrongful act, neglect, or
default which that would entitle the minor to maintain an action
and recover damages for the injury, damage, or loss, and when if
any minor who claims to be emancipated is entitled to maintain an
action for damages or any other relief based on any claim, or is
subject to any claim to recover damages or any other relief based
on any claim, the minor, who claims to be emancipated, may file an
application in the probate court in the county where he the minor
then resides, praying for a finding by the court that the minor is
in fact emancipated, and authorizing, approving, and consenting to
the settlement of the claim by the minor without the appointment
of a guardian. Upon hearing on the application, after five days'
written notice of the time and place of the hearing has been given
to each of the living parents of the minor, whose name and address
is known, provided the parent is free from disability other than
minority, or, if there is no living parent, after such
that notice
to the next of kin of the minor known to reside in the county, the
court may find the minor to be emancipated and, may authorize,
approve, and consent to the settlement of the claim by the minor
without the appointment of a guardian and, may authorize the minor
to receive and receipt for the settlement, and, upon the minor
executing and delivering a full and complete release for the
injuries, damages, losses, or claims, may authorize the delivery
and payment of such the moneys to the minor, to a trustee or
guardian of the estate of the minor appointed by the court for the
benefit of the minor, or to a depository authorized to receive
fiduciary funds to hold the moneys payable to the ward when he the
ward attains majority, or for the benefit of the minor, as the
court may direct.
Upon the finding of the probate court that the minor was, at
the time of the injury, damage, loss, or claim, an emancipated
minor, and provided the notice required by this section has been
given to each living parent, whose name and address is known, then
the release executed by the emancipated minor shall be a full and
complete discharge and release of any claim which that either or
both of the parents might have by reason of the personal injury,
damage to tangible or intangible property, damage or loss on
account of personal injury, or damage to tangible or intangible
property, or any other claim of the minor.
Sec. 2111.19. A guardian, whether appointed by a court in
this state or elsewhere, may complete the contracts of his the
ward for the purchase or sale of real estate property or any
authorized contract relating to real estate property entered into
by a guardian who has died or been removed. Said The appointed
guardian shall proceed in the manner provided by sections 2113.48
to 2113.50, inclusive, of the Revised Code.
Sec. 2111.20. The guardian of the person and estate, or of
the estate only, may sell all or any part of the personal estate
property of the ward when such if the sale is for the interest of
the ward.
Sec. 2111.21. The guardian of a ward who has or is claimed
to have a right of dower, or a contingent right to it, in lands or
tenements real property of which the spouse of such the ward was
or is seized as an estate of inheritance, where if the dower has
not been assigned, may sell, compromise, or adjust such the dower
or may release
such the contingent right of dower in the event the
spouse of such the ward desires to mortgage such the property upon
such the terms as such that the guardian deems considers for the
interest of such the ward and upon such the terms as that the
probate court of the county in which the guardian was appointed
approves, or if such the guardian was appointed to a foreign
state, upon such the terms as that the probate court of the county
wherein in which the
land real property is situated approves.
After such the approval, the guardian may execute and deliver all
the necessary deeds, mortgages, releases, and agreements for the
sale, compromise, assignment, or mortgage of such the dower or
contingent right to dower. As a basis for computing the value of
an inchoate dower right in any sale, compromise, or adjustment
pursuant to this section, the value of the
lands or tenements real
property may be considered to be the sale price or, if there is no
sale, the appraised value. Such The sale, compromise, adjustment,
or mortgage may be made upon application and entry in the pending
proceedings.
Sec. 2111.22. When a ward has title to real estate property
by tax title only, the guardian, by deed of release and quitclaim,
may convey such the ward's interest or title to the person
entitled to redeem such the real estate property, upon receiving
from
such that person the amount paid for such the tax title with
the forfeiture and interest allowed by sections 319.52 and 323.121
of the Revised Code. If the guardian tenders such that deed to the
person entitled to redeem such the real estate
property and he
the person so entitled refuses to accept and pay for it,
he the
person entitled shall not recover costs in any proceeding
thereafter instituted to redeem such the real estate property.
Sec. 2111.25. A guardian, of the person and estate or of the
estate only, without application to the probate court, may lease
the possession or use of any real estate property of his the ward
for a term not exceeding three years, provided
such the term does
not extend beyond the minority, if the ward is a minor. If the
lease extends beyond the death of the ward or beyond the removal
of the disability of a ward other than a minor, such the lease
shall terminate on such
that death or removal of disability,
unless confirmed by the ward or his
the ward's legal
representatives. In the event of such determination, the tenant
shall have a lien on the premises for any sum expended by him the
tenant in pursuance of the lease in making improvements for which
compensation was not made in rent or otherwise.
Sec. 2111.26. A guardian may lease the possession and use of
the real estate
property of his the guardian's ward or any part of
it for a term of years, renewable or otherwise, by perpetual
lease, with or without the privilege of purchase, or may lease
upon
such the terms and for such the time as that the probate
court approves any lands belonging to the ward containing coal,
gypsum, petroleum oil, natural gas, gravel, stone, or any other
mineral substance for the purpose of drilling, mining, or
excavating for and removing any of such those substances, or such
the guardian may modify or change in any respect any lease
previously made.
Such The lease, or modification or change in a lease
previously made, may be made when the guardian of the person and
estate or of the estate only applies to the court by which he the
guardian was appointed and such the court finds that the lease or
modification or change is necessary for the support of the ward or
of
his the ward's family, for the payment of the just debts of the
ward, for the ward's education, if a minor, to secure the
improvement of the real estate property of the ward and increase
the rent, to pay any liens or claims against said the real
estate
property, or if such the court finds that such the real estate
property is suffering unavoidable waste, or that in any other
respect it will be for the best interests of the ward or those
persons for whom the ward is required by law to provide.
Sec. 2111.27. A guardian's application for authority to
lease real estate property of a ward shall be by petition setting
forth the following:
(A) The legal capacity of the petitioner;
(B) The name of the ward, the character of his the ward's
disability, and if it is
idiocy, imbecility, or lunacy
incompetence, whether such the disability is curable or not,
temporary, or confirmed, and its duration;
(C) The number, names, ages, and residence of the family of
the ward, including the spouse and those residents of the county
who have the next estate of inheritance from such the ward, all of
whom, as well as the ward, must shall be made defendants;
(D) The indebtedness of the ward, the expense of supporting
and maintaining
him the ward, the expense of educating him the
ward if he the ward is a minor, and any other expense of the ward;
(E) The value of all the property and effects of the ward
including the real
estate property proposed to be leased;
(F) The income of the ward and the net annual value to the
ward of the real
estate property proposed to be leased;
(G) A description of the real estate property proposed to be
leased and the probable amount for which such the real estate
property can be leased;
(H) A detailed statement of the improvements proposed to be
made to the real
estate property sought to be leased;
(I) The reasons for the proposed lease and the terms,
covenants, conditions, and stipulations thereof of the proposed
lease, including the time for which it is proposed the real
estate
property should be leased;
(J) Such Any other facts necessary to apprise the court fully
of the necessity or benefit to the ward or the estate of the
proposed lease, or such any other facts as that may be required by
the court;
(K) A prayer for the proper authority.
Sec. 2111.28. In an application for authority to lease real
estate property of a ward under sections 2111.26 and 2111.27 of
the Revised Code, the guardian may act for two or more wards and
two or more guardians of different wards may unite, when if all
the wards are jointly or in common interested in the real estate
property.
When If the same person is guardian of two or more wards
owning lands in common, such the wards may be joined as defendants
in the same petition under section 2111.27 of the Revised Code.
The ward's spouse shall be made a defendant to such the
petition, and if the proposed lease is for the purpose of mining
or removing mineral or other substances, and if such the spouse
files an answer consenting to the lease, free and discharged of
all right and expectancy of dower therein, such the answer shall
be a full release of such the spouse's expectancy of dower when
the lease is confirmed. Unless in such the answer an allowance in
lieu of dower is waived, the court shall allow, out of the
proceeds of the lease, such a sum in money as that is the just and
reasonable value of such the expectancy of dower.
Sec. 2111.29. When a guardian files an application for
authority to lease the real estate property of a ward, the same
rules shall apply as to the parties and, upon the filing of the
petition described in section 2111.27 of the Revised Code, like
similar proceedings shall be had as in an action to sell real
estate property belonging to the ward under sections 2127.01 to
2127.43, inclusive, of the Revised Code, including services of
summons, notice, appraisal, pleading, rule days, and proof.
Sec. 2111.30. When a guardian applies for authority to lease
the real estate
property of a ward, the duties of the appraisers
shall be the same as in proceedings to sell real estate property
belonging to the ward under sections 2127.22 and 2127.23 of the
Revised Code, except that they shall appraise not only the value
of the real estate property but also the value of the annual
rental upon the terms, covenants, conditions, and stipulations of
the proposed lease. If said the proposed lease is for the mining
or removal of mineral or other substances, the appraisers shall
report in writing to the probate court their opinion as to the
probability of the lands containing such those substances, the
probable quantity of
such the substances, and the terms upon which
it would be advantageous to the ward to lease the lands for mining
or removing such the substances. In their report the appraisers
shall state whether in their opinion, the proposed lease will be
for the best interests of the ward, those whom he the ward is
required by law to support, or the estate. They may also suggest
any change in the terms, covenants, and stipulations proposed in
the petition. The report of the appraisers shall be returned on or
before the day named in the order for the final hearing of the
case. On the return of the appraisement, the guardian need not
give an additional bond, but in case of sale under the terms of
the lease, such the guardian must shall give such the additional
bond before the confirmation of the sale.
Sec. 2111.31. If the report of the appraisers under section
2111.30 of the Revised Code is favorable to the lease and on the
final hearing the court is of the opinion that it will be to the
advantage of the ward, those whom he
the ward is required by law
to support, or the estate to lease the real estate property, the
probate court shall make an order authorizing the lease to be made
by public or private letting, as it deems considers best, on such
the terms, covenants, conditions, and stipulations, either in
accordance with those set forth in the petition or otherwise, as
that it directs, provided such the terms, covenants, conditions,
and stipulations are not less favorable to the ward than those
reported by the appraisers. The lease shall not take effect until
such the lease and the security, if any, therein prescribed in the
lease are approved and confirmed.
In the The lease made in pursuance of such pursuant to the
court order it may be provided provide that the improvements shall
be made by the tenant as part of the rent, or by the guardian,
either out of the rent or other means of the ward as the court
directs.
If the lease is for the mining or removal of mineral or other
substances and the guardian is unable to lease the lands upon the
terms ordered, he
the guardian may report the fact to the court
and such the court may change the terms of leasing, but not below
the customary royalty in the vicinity of such the lands.
Sec. 2111.33. (A) A guardian may use the moneys and personal
estate property of his
the guardian's ward to improve his the
ward's real estate property. Such The guardian shall file in the
probate court in which he the guardian was appointed a petition
containing the following:
(A)(1) A description of the premises to be improved;
(B)(2) The amount of rent the premises yield at the time the
petition is filed;
(C)(3) In what manner it the improvement is proposed to make
such improvement be made;
(D)(4) The proposed expenditures for such the improvement;
(E) What (5) The rent the premises will probably yield when
so improved;
(F)(6) A statement of the value of the ward's personal estate
property;
(G)(7) Other facts which that are pertinent to the question
whether the improvement should be made;
(H)(8) A prayer that such the guardian be authorized to use
so much of his
the ward's money and personal estate as property
that is necessary to make such the improvement;
(I)(9) The character of the disability of the ward, and if it
is incompetency, whether such the disability is curable or not,
temporary, or confirmed, and its duration;
(J)(10) The names, ages, and residence of the family of the
ward, including the spouse and those known to be residents of the
county who have the next estate of inheritance from the ward. All
such of those persons, as well as the ward, must shall be made
defendants and notified of the pendency and prayer of the petition
in
such the manner as that the court directs.
(B) If the property is so situated that, to the best
interests of the ward's estate, it can be advantageously improved
in connection with the improvement of property adjacent to it, the
petition shall show this and have a prayer in accordance therewith
to so improve the property.
Sec. 2111.34. Upon the filing of the petition described in
section 2111.33 of the Revised Code, like similar proceedings
shall be had as to pleadings and proof as on petition by a
guardian to sell the real estate property of a ward under sections
2127.01 to 2127.43, inclusive, of the Revised Code. The probate
court shall appoint three disinterested freeholders of the county
as commissioners to examine the premises to be improved, to
examine the surroundings, and to report to the court their opinion
whether the improvement proposed will be advantageous to the
estate of the ward.
Sec. 2111.35. On the final hearing of a guardian's
proceeding to improve the real estate property of his the
guardian's ward, if the prayer of the petition is granted, the
probate court shall fix the amount of money and personal estate
property that may be used in making such the improvement. Such The
court may authorize such the guardian to unite with the owners of
adjacent property, upon such equitable terms and conditions as
that the court approves, for the improvement of the premises of
his
the ward and for the proper management and repair of the
property when so improved.
Sec. 2111.36. A guardian shall distinctly report to the
probate court the amount of money and personal property expended
in making an improvement to the ward's real property under section
2111.35 of the Revised Code, within forty days after the
improvement is completed. If the ward dies before the removal of
the disability and there are heirs who inherit real property only
from
him the ward, the money expended shall descend and pass in
the same manner as his the ward's other personal property and
shall be a charge on the premises improved in favor of the heirs
who inherit the personal property.
Sec. 2111.37. When If a nonresident minor, incompetent, or
person confined in a state, charitable, or correctional
institution has real estate, chattels, property or rights,
credits, or moneys, or other personal property in this state, the
probate court of the county in which the property or a part of it
is situated may appoint a resident guardian of the ward to manage,
collect, lease, and take care of the ward's property. The
appointment may be made whether or not a ward has a guardian,
trustee, or other conservator in the state of the ward's
residence, and, if the ward has a guardian, trustee, or other
conservator in the state of the ward's residence, the control and
authority of the resident guardian appointed in Ohio this state
shall be superior as to all property of the ward in Ohio this
state.
The first appointment of a resident guardian of a nonresident ward shall extend to all the property and effects of the ward in this state and exclude the jurisdiction of the probate court of any other county.
Sec. 2111.38. The resident guardian of a nonresident ward
shall give bond and be bound and controlled by all the statutes of
Ohio this state as though he the resident guardian were a guardian
of a ward resident in this state, and shall have all of the
authority of a guardian of a resident ward including the authority
to lease or sell real estate property belonging to the ward.
Unless removed by the probate court, a resident guardian of a
nonresident minor shall hold his that appointment until such the
minor dies or arrives at the age of majority, whether or not such
the minor is over fourteen years of age at the time of
appointment. A resident guardian of any other nonresident ward
shall hold his that appointment until the death of the ward or
until the court is satisfied that the necessity for the
guardianship no longer exists.
All moneys due to such the nonresident ward while such the
resident guardianship continues shall be paid over to his the
ward's foreign guardian so far as necessary or proper for the
ward's support and maintenance. If the ward dies, such the moneys
shall be paid to his the ward's ancillary administrator or other
legal representative, provided that the court which that appointed
such the resident guardian has satisfactory proof, as provided by
section 2111.39 of the Revised Code, of the authority of such the
foreign guardian, administrator, or other legal representative to
receive the moneys or estates properties of such the nonresident
ward, that the security given by such the foreign guardian,
administrator, or other legal representative is sufficient to
protect such the ward's interest or estate, and
provided such that
the court deems considers it best for him the ward or his
the
ward's estate.
Sec. 2111.39. When a foreign legal representative of a
nonresident ward applies to have all or any of the moneys or
property in the hands possession or under the control of the
resident guardian of such the ward paid or delivered to him the
foreign representative, he must the foreign representative shall
file
his a petition or motion in the probate court by which such
the resident guardian was appointed. Such The resident guardian
must shall be given thirty days' notice of the time of hearing
thereon on the petition or motion, and such the foreign
representative must shall produce an exemplification under the
seal of the office, if there be is a seal, of the proper court of
the state of his the foreign representative's residence containing
all the entries on record in relation to his the foreign
representative's appointment and qualification, authenticated as
required by the act of congress in such those cases. Upon the
hearing thereof, the court shall make such an order as that it
deems considers for the best interests of such the nonresident
ward or his the nonresident ward's estate.
Sec. 2111.40. When If a nonresident ward for whom a resident
guardian was appointed has become a resident since the appointment
and a guardian has been appointed for such the ward, the probate
court shall remove the resident guardian previously appointed and
require an immediate settlement of his
the account of the resident
guardian previously appointed.
Sec. 2111.41. When If a ward for whom a guardian has been
appointed in this state removes to another state or territory, and
a guardian of the ward is there appointed, the guardian in this
state may be removed and required to settle his that guardian's
account.
Such a That removal of the guardian in this state shall not
be made unless the guardian appointed in another state or
territory applies to the probate court in this state that made the
former appointment, and files an exemplification from the record
of the court making the foreign appointment containing all the
entries and proceedings relating to his the foreign guardian's
appointment, his
and giving bond, with a copy
thereof, of the bond
and of the letters of guardianship, all authenticated as required
by the act of congress. Before such an the application is heard or
action taken by the court, at least thirty days' written notice
shall be served on the guardian appointed in this state specifying
the object of the application, and the time it is to be heard.
No such removal of a guardian under this section shall be
made in favor of a foreign guardian, unless at the time of the
hearing the state or territory in which he the foreign guardian
was appointed has a similar provision as to wards removing from
that state or territory. The court shall grant the application
unless it makes an affirmative finding that the removal of the
guardian appointed in this state would not be in the interest of
the ward.
If on such a the hearing the court removes the guardian, it
shall make all suitable orders for discharging the guardian and
shall deliver to the foreign guardian all moneys and other
property in the hands possession or under the control of the
resident guardian after his the resident guardian's settlement.
Sec. 2111.44. Applications for the sale of real estate
property by guardians of wards who live out of this state shall be
made in the county in which the land is situated. If such the real
estate property is situated in two or more counties, such the
application shall be made in one of the counties in which a part
of it is situated. Additional security, which that may be approved
by the probate court of the county in which the application is
made, shall be required from such the guardian when deemed if
considered necessary.
Sec. 2111.46. When a guardian has been appointed for a minor
before such the minor is over fourteen years of age, such the
guardian's power shall continue until the ward arrives at the age
of majority, unless removed for good cause or unless such the ward
selects another suitable guardian. After such the selection is
made and approved by the probate court and the person selected is
appointed and qualified, the powers of the former guardian shall
cease. Thereupon his The former guardian's final account as
guardian shall then be filed and settled in court.
Upon the termination of a guardianship of the person, estate,
or both of a minor before such the minor reaches eighteen years of
age, if a successor guardian is not appointed and if the court
finds that such the minor is without proper care, the court shall
certify a copy of its finding together with as much of the record
and such any further information as that the court deems considers
necessary, or as the juvenile court may request, to the juvenile
court for further proceedings
and thereupon such. Upon that
certification, the juvenile court shall have exclusive
jurisdiction respecting such child the minor.
Sec. 2111.48. All sales, leases, encumbrances, or liens made
or created on any real estate property located in Ohio this state
by guardians for persons who are incompetent by reason of advanced
age or mental or physical disability since August 17, 1919, by
order of any court of this state shall not be declared invalid for
the reason that such the guardians for the incompetents were not
vested with all the statutory powers given to guardians of idiots,
imbeciles, and lunatics incompetents. Such Those acts of guardians
for incompetents are legal and effective.
Sec. 2111.50. (A)(1) At all times, the probate court is the superior guardian of wards who are subject to its jurisdiction, and all guardians who are subject to the jurisdiction of the court shall obey all orders of the court that concern their wards or guardianships.
(2)(a) Subject to divisions (A)(2)(b) and (c) of this
section, the control of a guardian over the person, the estate, or
both of his the guardian's ward is limited to the authority that
is granted to the guardian by the Revised Code, relevant decisions
of the courts of this state, and orders or rules of the probate
court.
(b) Except for the powers specified in division (E) of this section and unless otherwise provided in or inconsistent with another section of the Revised Code, the probate court may confer upon a guardian any power that this section grants to the probate court in connection with wards.
(c) For good cause shown, the probate court may limit or deny, by order or rule, any power that is granted to a guardian by a section of the Revised Code or relevant decisions of the courts of this state.
(B) In connection with any person whom the probate court has
found to be an incompetent or a minor subject to guardianship and
for whom the court has appointed a guardian, the court has,
subject to divisions (C) to (E) of this section, all the powers
that relate to the person and estate of the person ward and that
he the ward could exercise if present and not a minor or under a
disability, except the power to make or revoke a will. These
powers include, but are not limited to, the power to do any of the
following:
(1) Convey or release the present, contingent, or expectant
interests in real or personal property of the person
ward,
including, but not limited to, dower and any right of survivorship
incident to a survivorship tenancy, joint tenancy, or tenancy by
the entireties;
(2) Exercise or release powers as a trustee, personal representative, custodian for a minor, guardian, or donee of a power of appointment;
(3) Enter into contracts, or create revocable trusts of
property of the estate of the person ward, that may not extend
beyond the minority, disability, or life of the person or ward;
(4) Exercise options to purchase securities or other property;
(5) Exercise rights to elect options under annuities and insurance policies, and to surrender an annuity or insurance policy for its cash value;
(6) Exercise the right to an elective share in the estate of
the deceased spouse of the person ward pursuant to section
2107.45
2106.08 of the Revised Code;
(7) Make gifts, in trust or otherwise, to relatives of the
person ward and, consistent with any prior pattern of the
person
ward of giving to charities or of providing support for friends,
to charities and friends of the person ward.
(C) Except for the powers specified in division (D) of this
section, all powers of the probate court that are specified in
this chapter and that relate either to any person whom it has
found to be an incompetent or a minor subject to guardianship and
for whom it has appointed a guardian and all powers of a guardian
that relate to his the guardian's ward or guardianship as
described in division (A)(2) of this section, shall be exercised
in the best interest, as determined in the court's or guardian's
judgment, of the following:
(1) The person ward whom the probate court has found to be an
incompetent or a minor subject to guardianship;
(2) The dependents of the person ward;
(3) The members of the household of the person ward.
(D) If the court is to exercise or direct the exercise, pursuant to division (B) of this section, of the power to make gifts in trust or otherwise, the following conditions shall apply:
(1) The exercise of the particular power shall not impair the
financial ability of the estate of the person ward whom the
probate court has found to be an incompetent or a minor subject to
guardianship and for whom the court has appointed a guardian, to
provide for his the ward's foreseeable needs for maintenance and
care;
(2) If applicable, the court shall consider any of the following:
(a) The estate, income, and other tax advantages of the
exercise of a particular power to the estate of a person ward whom
the probate court has found to be an incompetent or a minor
subject to guardianship and for whom the court has appointed a
guardian;
(b) Any pattern of giving of, or any pattern of support
provided by, the person ward prior to his the ward's incompetence;
(c) The disposition of property made by the ward's will of
the person;
(d) If there is no knowledge of a will of the person ward,
his the ward's prospective heirs;
(e) Any relevant and trustworthy statements of the person
ward, whether established by hearsay or other evidence.
(E)(1) The probate court shall cause notice as described in division (E)(2) of this section to be given and a hearing to be conducted prior to its exercise or direction of the exercise of any of the following powers pursuant to division (B) of this section:
(a) The exercise or release of powers as a donee of a power of appointment;
(b) Unless the amount of the gift is no more than one thousand dollars, the making of a gift, in trust or otherwise.
(2) The notice required by division (E)(1) of this section shall be given to the following persons:
(a) Unless a guardian of a ward has applied for the exercise of a power specified in division (E)(1) of this section, to the guardian;
(b) To the person ward whom the probate court has found to be
an incompetent or a minor subject to guardianship;
(c) If known, to a guardian who applied for the exercise of a
power specified in division (E)(1) of this section, to the
prospective heirs of the person ward whom the probate court has
found to be an incompetent or a minor subject to guardianship
under section 2105.06 of the Revised Code, and any person who has
a legal interest in property that may be divested or limited as
the result of the exercise of a power specified in division (E)(1)
of this section;
(d) To any other persons the court orders.
(F) When considering any question related to, and issuing orders for, medical or surgical care or treatment of incompetents or minors subject to guardianship, the probate court has full parens patriae powers unless otherwise provided by a section of the Revised Code.
Sec. 2113.01. Upon the death of a resident of this state who
dies intestate, letters of administration of his the decedent's
estate shall be granted by the probate court of the county in
which he the decedent was a resident at the time he died of death.
If the will of any person is admitted to probate in this
state, letters testamentary or of administration shall be granted
by the probate court in which such the will was admitted to
probate.
Sec. 2113.03. (A) Subject to division (D)(I) of this
section, an estate may be released from administration under
division (B) of this section if either of the following applies:
(1) The value of the assets of the estate is thirty-five thousand dollars or less.
(2) The value of the assets of the estate is one hundred thousand dollars or less and either of the following applies:
(a) The decedent devised and bequeathed in a valid will all of the assets of the decedent's estate to a person who is named in the will as the decedent's spouse, and the decedent is survived by that person.
(b) The decedent is survived by a spouse whose marriage to the decedent was solemnized in a manner consistent with Chapter 3101. of the Revised Code or with a similar law of another state or nation, the decedent died without a valid will, and the decedent's surviving spouse is entitled to receive all of the assets of the decedent's estate under section 2105.06 of the Revised Code or by the operation of that section and division (B)(1) or (2) of section 2106.13 of the Revised Code.
(B) Upon the application of any interested party, after
notice of the filing of the application has been given to the
surviving spouse and heirs at law in the manner and for the length
of time the probate court directs, and after notice to all
interested parties by publication in a newspaper of general
circulation in the county, unless the notices are waived or found
unnecessary, the court, when satisfied that division (A)(1) or (2)
of this section is satisfied, may enter an order relieving the
estate from administration and directing delivery of personal
property and transfer of real estate property to the persons
entitled to the personal property or real estate property.
(C) For the purposes of this section, the value of an estate that reasonably can be considered to be in an amount specified in division (A)(1) or (2) of this section and that is not composed entirely of money, stocks, bonds, or other property the value of which is readily ascertainable, shall be determined by an appraiser selected by the applicant, subject to the approval of the court. The appraiser's valuation of the property shall be reported to the court in the application to relieve the estate from administration. The appraiser shall be paid in accordance with section 2115.06 of the Revised Code.
(D) For the purposes of this section, the amount of property to be delivered or transferred to the surviving spouse, minor children, or both, of the decedent as the allowance for support shall be established in accordance with section 2106.13 of the Revised Code.
When a delivery, sale, or transfer of personal property has
been ordered from an estate that has been relieved from
administration, the (E) The court may appoint a commissioner to
execute all necessary instruments of conveyance, including the
instruments of conveyance and other documents required for the
transfer of title upon the sale of real property pursuant to
section 2127.011 of the Revised Code. The commissioner shall
receipt for the property, distribute the proceeds of the
conveyance upon court order, and report to the court after
distribution the delivery, sale, or transfer of personal or real
property from an estate that has been relieved from
administration.
When (F) If the decedent died testate, the will shall be
presented for probate, and, if admitted to probate, the court may
relieve the estate from administration and order distribution of
the estate under the will.
(G) An order of the court relieving an estate from
administration shall have the same effect as administration
proceedings in freeing land real property in the hands possession
or under the control of an innocent purchaser for value from
possible claims of unsecured creditors.
(C)(H) Any delivery of personal property or transfer of real
estate property pursuant to an order relieving an estate from
administration is made subject to the limitations pertaining to
the claims of creditors set forth in divisions (B) and (C) of
section 2117.06 of the Revised Code.
(D)(I) The release of an estate from administration under
this section does not affect any duty of any person to file an
estate tax return and certificate under division (A) of section
5731.21 of the Revised Code and does not affect the duties of a
probate court set forth in that division.
(E)(J) This section does not affect the ability of qualified
persons to file an application for a summary release from
administration under section 2113.031 of the Revised Code or to
file an application for the grant of letters testamentary or
letters of administration.
Sec. 2113.04. (A) Any employer, including the state or a
political subdivision, at any time after the death of his or its
an employee, may pay all wages or personal earnings due to the
deceased employee to: (A) the surviving spouse; (B) any one or
more of the children eighteen years of age or older; or (C) the
father or mother of the deceased employee the following,
preference being given in the order named, without requiring
letters testamentary or letters of administration to be issued
upon the estate of the deceased employee, and without requiring an
Ohio estate tax release where if the wages or personal earnings do
not exceed two five thousand five hundred dollars. The:
(1) The surviving spouse;
(2) Any one or more of the children eighteen years of age or older;
(3) The father or mother of the deceased employee.
(B) The payment of wages or personal earnings under division
(A) of this section is a full discharge and release to the
employer from any claim for the wages or personal earnings. If
letters testamentary or letters of administration are thereafter
issued upon the estate of the deceased employee, any person
receiving payment of wages or personal earnings under this section
that division is liable to the executor or administrator for the
sum received by
him the person.
Sec. 2113.05. When a will is approved and allowed, the
probate court shall issue letters testamentary to the executor
named in the will or to the executor nominated by holders of a
power as described in section 2107.65 of the Revised Code, or to
the executor named in the will and to a coexecutor nominated by
holders of such a that power, if he the executor or coexecutor is
suitable, competent, accepts the appointment, and gives bond if
that is required.
If no executor is named in a will and no power as described
in section 2107.65 of the Revised Code is conferred in the will,
or if the executor named in a will or nominated pursuant to such a
that power dies, fails to accept the appointment, resigns, or is
otherwise disqualified and the holders of such a the power do not
have authority to nominate another executor or no such the power
is not conferred in the will, or if such a the power is conferred
in a will but the power cannot be exercised because of the death
of a holder of the power, 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, unless
the will indicates an intention that the person or persons shall
not be granted letters of administration. Otherwise, the court
shall grant letters of administration with the will annexed to
some other suitable person.
Sec. 2113.06. (A) Administration of the estate of an
intestate shall be granted to persons mentioned in this section
division, in the following order:
(A)(1) To the surviving spouse of the deceased, if resident
of the state;
(B)(2) To one of the next of kin of the deceased, resident of
the state.
(B) If the persons entitled to administer the estate under
division (A) of this section fail to take or renounce
administration voluntarily, they shall be cited by the probate
court for that purpose the matter shall be set for hearing and
notice given to the persons.
(C) If there are no persons entitled to administration, or 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. Such The person
granted administration may be a creditor of the estate.
(D) This section applies to the appointment of an administrator de bonis non.
Sec. 2113.07. 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
post-office addresses of usual residence if known, a statement in
general terms
as to of what the estate consists of and its
probable value, and a statement of any indebtedness the deceased
had against the applicant.
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 cited by the probate
court 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.
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 there is not to his the person
has no knowledge of a last will and testament of the intestate.
Sec. 2113.12. If a person named as executor in the will of a
decedent, or nominated as an executor by holders of a power as
described in section 2107.65 of the Revised Code, refuses to
accept the trust, or, if after being cited served notice for that
purpose, neglects to appear and accept, or if he the person named
or nominated as executor neglects for twenty days after the
probate of the will to give any required bond, the probate court
shall grant letters testamentary to the other executor, if there
is one capable and willing to accept the trust, and if there is no
such other executor named in the will or nominated by holders of a
power as described in section 2107.65 of the Revised Code, the
court shall commit administration of the estate, with the will
annexed, to some suitable and competent person, pursuant to
section 2113.05 of the Revised Code.
Sec. 2113.13. When a person appointed nominated as executor
is under the age of eighteen years at the time of proving
admitting the will to probate, administration may be granted with
the will annexed during his the nominee's minority, unless there
is another executor who will accept the trust. If there is such an
that other executor, the estate shall be administered by him that
executor until the minor arrives at full age when such the former
minor may be admitted as executor with him upon giving bond as
provided in section 2109.04 of the Revised Code.
Sec. 2113.14. The executor of an executor has no authority,
as such, to administer the estate of the first testator. On the
death of the sole or surviving executor of a last will,
administration of that part of the estate of the first testator
not already administered may be granted, with the will annexed, to
such the person as that the probate court appoints.
Sec. 2113.15. When there is delay in granting letters testamentary or of administration, the probate court may appoint a special administrator to collect and preserve the effects of the deceased and grant the special administrator any other authority that the court considers appropriate.
Such The special administrator must shall collect the
chattels assets and debts of the deceased and preserve them for
the executor or administrator who thereafter is appointed. For
that purpose such the special administrator may begin and,
maintain, or defend suits as administrator and also sell such
goods as any assets the court orders sold.
He The special
administrator shall be allowed such the compensation for his the
special administrator's services as that the court thinks
reasonable, if he forthwith delivers the property and effects of
the estate to the executor or administrator who supersedes the
special administrator faithfully fulfills the fiduciary duties.
him
Sec. 2113.16. Upon granting of letters testamentary or of
administration, the power of a special administrator appointed
under section 2113.15 of the Revised Code shall cease terminate
and he forthwith must deliver the special administrator shall
transfer to the executor or administrator all the chattels and
moneys assets of the deceased in his hands the possession or under
the control of the special administrator. The special
administrator shall file an account of the special administration
within thirty days of the appointment of the executor or
administrator. The account shall be in conformance with section
2109.30 of the Revised Code. The executor or administrator may be
admitted to prosecute any suit begun by the special administrator,
as an administrator de bonis non is authorized to prosecute a suit
commenced by a former executor or administrator.
If such the special administrator neglects or refuses to
deliver over transfer the property assets and estate to the
executor or administrator, the probate court may compel
him to do
so the transfer by citation and attachment. The executor or
administrator also may proceed, by civil action, to recover the
value of the assets from such the special administrator and his
the special administrator's sureties.
Sec. 2113.17. A creditor's claim may be presented in accordance with section 2117.06 of the Revised Code to a special administration appointed under section 2113.15 of the Revised Code.
Sec. 2113.18. (A) The probate court may remove any executor
or administrator if there are unsettled claims existing between
him the executor or administrator and the estate, which that the
court thinks may be the subject of controversy or litigation
between
him the executor or administrator and the estate or
persons interested therein in the estate.
(B) The probate court may remove any executor or administrator upon motion of the surviving spouse, children, or other next of kin of the deceased person whose estate is administered by the executor or administrator if both of the following apply:
(1) The executor or administrator refuses to bring an action
for wrongful death in the name of the deceased person;.
(2) The court determines that a prima-facie case for a wrongful death action can be made from the information available to the executor or administrator.
Sec. 2113.19. When a sole executor or administrator dies
without having fully administered the estate, the probate court
shall grant letters of administration, with the will annexed or
otherwise as the case requires, to some suitable person pursuant
to section 2113.05 or 2113.06 of the Revised Code. Such That
person shall administer the goods and estate assets of the
deceased not previously administered, in case there is personal
estate to be administered to the amount of twenty dollars or debts
to that amount due from the estate.
Sec. 2113.20. If a will of a deceased is proved and allowed
after letters of administration have been granted as of an
intestate estate, the first administration shall be revoked,
unless before such the revocation a petition complaint contesting
the probate of such the will is filed in the probate court of
common pleas. If
such a petition complaint of that nature is
filed, the probate court may allow the administration to be
continued in the hands of by the original administrators until the
final determination of such the contest. If the will is sustained,
the first administration must shall be revoked. In either case,
upon revocation of the first administration and the appointment of
an executor or administrator with the will annexed, such that
executor or administrator shall be admitted to prosecute or defend
any suit, proceeding, or matter begun by or against the original
administrator, in like the same manner as an administrator de
bonis non is authorized to prosecute or defend a suit commenced by
a former executor or administrator.
Sec. 2113.21. (A) When a will is contested, the executor, the administrator de bonis non, with the will annexed, or the testamentary trustee may, during the contest, do the following:
(A)(1) Control all the real estate which is included in the
will but not specifically devised property and all the personal
estate property of the testator not administered before such the
contest;
(B)(2) Collect the debts and convert all assets into money,
except those which that are specially bequeathed;
(C)(3) Pay all taxes on such the real and personal property
and all debts;
(D)(4) Repair buildings and make other improvements if
necessary to preserve the real property from waste;
(E)(5) Insure such those buildings upon an order first
obtained from the probate court having jurisdiction of such the
executor, administrator, or testamentary trustee;
(F)(6) Advance or borrow money on the credit of such the
estate for such the repairs, taxes, and insurance which that shall
be a charge thereon on the estate;
(G)(7) Receive and receipt for a distributive share of an
estate or trust to which such the testator would have been
entitled, if living.
(B) The court may require such additional bonds as that from
time to time seems seem proper.
Sec. 2113.22. An administrator or executor or administrator
appointed in the place of an executor or administrator who has
resigned or been removed, whose letters have been revoked, or
whose authority has been extinguished is entitled to the
possession of all the unadministered personal effects and assets
of the estate
unadministered, and all other funds collected and
unaccounted for by such the former executor or administrator, and
may maintain a suit against the former executor or administrator
and his the former executor's or administrator's sureties on the
administration bond to recover such those effects, assets, and
funds and for all damages arising from the maladministration or
omissions of the former executor or administrator.
Sec. 2113.25. So far as the executor or administrator is
able, the The executor or administrator of an estate shall collect
the assets and complete the administration of that estate within
thirteen six months after the date of appointment unless an
extension of the time to file a final and distributive account is
authorized under division (B) of section 2109.301 of the Revised
Code.
Upon application of the executor or administrator and notice
to the interested parties, if the probate court considers that
notice necessary, the court may allow further time in which to
collect assets, to convert assets into money, to pay creditors, to
make distributions to legatees or distributees, to file partial,
final, and distributive accounts, and to settle estates. The
court, upon application of any interested party, may authorize the
examination under oath in open court of the executor or
administrator upon any matter relating to the administration of
the estate For good cause shown, the court may grant an extension
of the time to file the inventory and accounts.
Sec. 2113.26. The court, upon application of any interested party, may authorize the examination of the executor or administrator under oath in open court on any matter relating to the administration of the estate.
Sec. 2113.30. (A) Except as otherwise directed by the
decedent in the decedent's last will and testament, an executor or
administrator, without personal liability for losses incurred, may
continue the decedent's business during four months next following
the date of the appointment of that executor or administrator,
unless the probate court directs otherwise, and for any further
time that the court may authorize upon a hearing and after notice
to the surviving spouse and distributees. In either case, no debts
incurred or contracts entered into shall involve the estate beyond
the assets used in that business immediately prior to the death of
the decedent without first obtaining the approval of the court.
During the time the business is continued, the executor or
administrator shall file monthly reports in the court, setting
forth the receipts and expenses of the business for the preceding
month and any other pertinent information that the court may
require. The executor or administrator may not bind the estate
without court approval beyond the period during which the business
is continued.
(B) As used in this section, "decedent's business" means a business that is owned by the decedent as a sole proprietor at the time of the decedent's death. "Decedent's business" does not include a business that is owned in whole or in part by the decedent as a shareholder of a corporation, a member of a limited liability company, or a partner of a partnership, or under any other form of ownership other than a sole proprietorship.
Sec. 2113.31. Every executor or administrator is chargeable
with all
chattels, rights, and credits assets of the deceased
which that come into his hands the possession or under the control
of the executor or administrator and are to be administered,
although not included in the inventory required by section 2115.02
of the Revised Code. Such The executor or administrator is also
chargeable with all the proceeds of personal property and real
estate property sold for the payment of debts or legacies, and all
the interest, profit, and income that in any way comes to his
hands into the possession or under the control of the executor or
administrator from the personal
estate property of the deceased.
Sec. 2113.311. (A) If, within a reasonable time after the
appointment of the executor or administrator, no one in authority
has taken over the management and rental of any real estate
property of which the decedent died seized, the executor or
administrator, or an heir or devisee may, unless the will
otherwise provides, make application to the probate court for an
order authorizing the executor or administrator to assume such
those duties. Such The application shall contain the following:
(1) A brief statement of the facts upon which the application
is based and such any other pertinent information as that the
court may require;
(2) A description or identification of the real estate
property and the interest owned by the decedent at the time of his
death;
(3) The names and addresses, if known to the applicant, of
the persons to whom such the real estate property passed by
descent or devise.
(B) Notice of the time of hearing on such the application
shall be given to the persons designated in sub-paragraph division
(A)(3) of this section, unless for good cause the court dispenses
with
such that notice, and also to the executor or administrator,
unless the executor or administrator is the applicant.
(C) If the court finds that the statements contained in the
application are true and that it would be for the best interest of
such those heirs or devisees that the application be granted, it
may authorize the executor or administrator to assume the
management and rental of such the real estate property.
(D) The court may require bond, new or additional, in an
amount to be fixed by the court and conditioned that the executor
or administrator will faithfully and honestly discharge the duties
devolving upon him by from the provisions of this section.
(B)(E) In the exercise of such the authority granted under
this section, the executor or administrator shall be authorized to
do the following:
(1) Collect rents;
(2) From the rents collected:
(a) Pay all taxes and assessments due on such the real estate
property, and all such usual operating expenses in connection with
the its management thereof;
(b) Make repairs when necessary to preserve such the real
estate property from waste, provided that an order of the court
shall first be obtained if the cost of such repairs exceeds one
hundred dollars;
(c) Insure buildings against loss by fire or other casualty
and against public liability;.
(3) Advance money upon an order first obtained from the
court, for such the repairs, taxes, insurance, and all usual
operating expenses, which that shall be a charge on such the real
estate property;
(4) Rent the property on a month-to-month basis, or, upon an order first obtained from the court, for a period not to exceed one year;
(5) Prosecute actions for forcible entry and detention
detainer of
such the real estate property.
(F) The executor or administrator shall, at intervals not to
exceed twelve months, pay over to the heirs or devisees, if known,
their share of the net rents, and shall account for all money
received and paid out under authority of this section in
his the
executor's or administrator's regular accounts of the
administration of the estate, but in a separate schedule. If any
share of the net rents remains unclaimed, it may be disposed of in
the same manner as is provided for unclaimed money under section
2113.64 of the Revised Code.
(G) The authority granted under this section shall terminate
upon the transfer of the real estate property to the heirs or
devisees in accordance with section 2113.61 of the Revised Code,
or upon a sale thereof of the real property, or upon application
of the executor or administrator, or for a good cause shown, upon
the application of an heir or devisee.
(H) Upon application the court may allow compensation to the
executor or administrator for extraordinary services, which that
shall be charged against the rents, and if said the rents be are
insufficient, shall be a charge against such the real estate
property.
Upon application the court may allow reasonable attorney fees
paid by the executor or administrator when an attorney is employed
in connection with the management and rental of such the real
estate, which property that shall be charged against the rents,
and if
said the rents be are insufficient, shall be a charge
against such the real
estate property.
Sec. 2113.33. An executor or administrator is not
accountable for debts inventoried as due to the decedent, if it
appears to the probate court that, without his the executor's or
administrator's fault, they remain uncollected.
Sec. 2113.34. If an executor or administrator neglects to
sell personal property which he that is required to
sell be sold,
and retains, consumes, or disposes of it for his the executor's or
administrator's own benefit, he the executor or administrator
shall be charged therewith with the personal property at double
the value affixed
thereto to the property by the appraisers.
Sec. 2113.35. (A) Executors and administrators shall be
allowed commissions fees upon the amount of all the personal
estate property, including the income from the personal estate
property, that is received and accounted for by them and upon the
proceeds of real estate
property that is sold, as follows: (A)
(1) For the first one hundred thousand dollars, at the rate
of four per cent; (B)
(2) All above one hundred thousand dollars and not exceeding
four hundred thousand dollars, at the rate of three per cent; (C)
(3) All above four hundred thousand dollars, at the rate of
two per cent. Executors
(B) Executors and administrators also shall be allowed a
commission fee of one per cent on the value of real estate
property that is not sold. Executors and administrators also shall
be allowed a
commission fee of one per cent on all property that
is not subject to administration and that is includable for
purposes of computing the Ohio estate tax, except joint and
survivorship property. The
(C) The basis of valuation for the allowance of such
commissions the fees on real estate property sold shall be the
gross proceeds of sale, and for all other property the fair market
value of the other property as of the date of death of the
decedent. The
commissions fees allowed to executors and
administrators in this section shall be received in full
compensation for all their ordinary services. If
(D) If the probate court finds, after a hearing, that an
executor or administrator, in any respect, has not faithfully
discharged
his the duties as executor or administrator, the court
may deny the executor or administrator any compensation whatsoever
or may allow the executor or administrator the reduced
compensation that the court thinks proper.
Sec. 2113.36. Allowances, in addition to those provided by
section 2113.35 of the Revised Code for an executor or
administrator, which that the probate court considers just and
reasonable shall be made for actual and necessary expenses and for
extraordinary services not required of an executor or
administrator in the common course of his duty the executor's or
administrator's duties.
Upon the application of an executor or administrator for
further allowances for extraordinary services rendered, the court
shall review both ordinary and extraordinary services claimed to
have been rendered. If the commissions fees payable pursuant to
section 2113.35 of the Revised Code, exceed the reasonable value
of such the ordinary services rendered, the court must shall
adjust any allowance made for extraordinary services so that the
total
commissions fees and allowances to be made fairly reflect
the reasonable value of both ordinary and extraordinary services.
When If an attorney has been employed in the administration
of the estate, reasonable attorney fees paid by the executor or
administrator shall be allowed as a part of the expenses of
administration. The court may at any time during administration
fix the amount of such those fees and, on application of the
executor or administrator or the attorney, shall fix the amount
thereof of the fees.
When If provision is made by the will of the
deceased for compensation to an executor, the amount provided
shall be a full satisfaction for his the executor's or
administrator's services, in lieu of such commissions the fees or
his share thereof of the fees, unless by an instrument filed in
the court within four months after his appointment he the executor
or administrator renounces all claim to the compensation given by
the will.
Sec. 2113.39. If a qualified executor, administrator, or
testamentary trustee is authorized by will or devise to sell any
class of personal property
whatsoever or real estate property, no
order shall be required from the probate court
to enable him for
the executor, administrator, or testamentary trustee to act in
pursuance of the power vested in him
proceed with the sale. A
power to sell authorizes a sale for any purpose deemed considered
by
such the executor, administrator, or testamentary trustee to be
for the best interest of the estate, unless the power is expressly
limited by such the will or devise.
Sec. 2113.40. (A) At any time after the appointment of an
executor or administrator, the probate court, when if satisfied
that it would be for the best interests of the estate, may
authorize
such the executor or administrator to sell at public or
private sale, at a fixed price or for the best price obtainable,
and for cash or on such the terms as that the court may determine,
any part or all of the personal property belonging to the estate,
except the following:
(A) Such property as (1) Property that the surviving spouse
desires to take at the appraised value;
(B)(2) Property specifically bequeathed, when if the sale of
such that property is not necessary for the payment of debts,
provided that
such the property may be sold with the consent of
the person entitled
thereto to the property, including executors,
administrators, guardians, and trustees;
(C)(3) Property as to which distribution in kind has been
demanded prior to the sale by the surviving spouse or other
beneficiary entitled to such the distribution in kind;
(D)(4) Property which that the court directs shall not be
sold pursuant to a wish expressed by the decedent in his the
decedent's will; but at any later period, on application of a
party interested, the court may, and for good cause shall, require
such the sale to be made.
(B) In case of a sale before expiration of the time within
which the surviving spouse may elect to take at the appraised
value, not less than ten days' notice of such the sale shall be
given to the surviving spouse, unless such the surviving spouse
consents to such the sale or waives notice thereof of the sale.
Such The notice shall not be required as to perishable property.
(C) The court may permit the itemized list of personal
property being sold to be incorporated in documents and records
relating to the sale, by reference to other documents and records
which that have been filed in the court. Provided, provided that a
court order shall not be required to permit the public sale of
personal goods and chattels property.
Sec. 2113.41. (A) Public sales of personal property mentioned
as provided in section 2113.40 of the Revised Code shall be at
public auction and, unless otherwise directed by the probate
court, after notice of such the sale has been given by any of the
following methods:
(A)(1) By advertisement appearing at least three times in a
newspaper of general circulation in the county during a period of
fifteen days next preceding such the sale;
(B)(2) By advertisement posted not less than fifteen days
next preceding such the sale in at least five public places in the
township or municipal corporation where such the sale is to take
place;
(C)(3) By both such forms of advertisement specified in
divisions (A)(1) and (2) of this section.
Such (B) The advertisement published or posted as described
in divisions (A)(1) and (2) of this section shall specify
generally the property to be sold and the date, place, and terms
of the sale. The executor or administrator, if considered in the
best interests of the estate, may employ an auctioneer or clerk,
or both, to conduct such the sale, and their reasonable fees and
charges shall be deducted from the proceeds of the sale. The court
for good cause may extend the time for sale.
Sec. 2113.45. When a mortgagee of real estate property, or
an assignee of such the mortgagee, dies without foreclosing the
mortgage, the mortgaged premises and the debts secured thereby by
the mortgage shall be considered personal assets in the hands
possession or under the control of the executor or administrator
of such the estate of the mortgagee or assignee, and shall be
administered and accounted for as such.
If the mortgagee or assignee did not obtain possession of the
mortgaged premises in his the mortgagee's or assignee's lifetime,
his the executor or administrator of the estate of the deceased
mortgagee or assignee may take possession of the premises by open
and peaceable entry or by action, as the deceased might have done
if living.
Sec. 2113.46. In case of the redemption of a mortgage
belonging to the estate of a decedent, the money paid thereon must
on the redemption shall be received by the executor or
administrator, and thereupon he the executor or administrator
shall release and discharge the mortgage. Until such that
redemption, if the executor, administrator, or decedent has taken
possession of the mortgaged premises, the executor or
administrator, if possession has been taken by him or by the
decedent, shall be seized of the mortgaged premises in trust for
the same persons who would be entitled to the money if the
premises had been redeemed.
Sec. 2113.48. When a person who has entered into a written
contract for the sale and conveyance of an interest in real estate
property dies before its completion,
his the executor or
administrator when of the decedent's estate, if not required to
otherwise dispose of such the contract, may, with the consent of
the purchaser, obtain authority to complete
such the contract by
filing an application therefor for that authority in the probate
court of the county in which he the executor or administrator was
appointed. Notice of the time of hearing on such the application
shall be given to the surviving spouse and heirs, if the decedent
died intestate, and to the surviving spouse, and devisees or
legatees having an interest in such the contract, if the decedent
died testate. If the court is satisfied that it would be for the
best interests of the estate, it may authorize the executor or
administrator to complete said the contract and to execute and
deliver to the purchaser such the instruments as that are required
to make the order of the court effective.
Sec. 2113.49. When a person who has entered into a written
contract for the sale and conveyance of an interest in real
estate
property dies before its completion, his the executor or
administrator of the decedent's estate, when if not required to
otherwise dispose of the contract, may file a petition complaint
for the alteration or cancellation of the contract, in the probate
court of the county in which he the executor or administrator was
appointed, or in which the real estate property or any part of it
is situated. If the decedent died intestate, the surviving spouse
and heirs, and if the decedent died testate, the surviving spouse,
and devisees or legatees having an interest in the contract, when
if not the plaintiffs, shall, together with the purchaser, be made
parties defendant.
If, upon hearing, the court is satisfied that it is for the
best interests of the estate, it may, with the consent of the
purchaser, authorize the executor or administrator to agree to the
alteration or cancellation of the contract, and to execute and
deliver to the purchaser the instruments required to make the
order of the court effective. Before making such an its order, the
court shall cause to be secured, to and for the benefit of the
estate of the deceased, its just part of the consideration of the
contract. The instruments executed and delivered pursuant to
such
an the court's order shall recite the order, and be as binding on
the heirs and other parties in interest, as if made by the
deceased
in his lifetime prior to death.
Sec. 2113.50. When a person who has entered into a written
contract for the purchase of an interest in real estate property
dies before a the conveyance thereof of the interest to
him the
person, his the executor or administrator of the decedent's
estate, or the surviving spouse, or any heir, or any devisee or
legatee having an interest in such the contract, may file an
application for authority to complete such the contract in the
probate court of the county in which the executor or administrator
was appointed. Notice of the time of the hearing on such the
application shall be given to the surviving spouse and heirs, if
the decedent died intestate, and to the surviving spouse, and
devisees or legatees having an interest in such the contract, if
the decedent died testate, to the executor or administrator, if
not the applicant, and to all other persons having an interest in
such the real estate property that is the subject of the contract.
If the court is satisfied that it would be for the best interests
of the estate, it may, with the consent of the vendor, authorize
the executor or administrator to complete the contract, pay to the
vendor the amount due on the contract, and authorize a conveyance
of the interest in the real estate property to the persons
entitled
thereto to it. If, however, the court finds that the
condition of the estate at the time of the hearing does not
warrant the payment out of the estate of the amount due under the
contract, it may authorize the persons entitled to the interest of
the decedent in the contract to pay to the vendor the amount due
on the contract. The real estate property so conveyed shall
thereafter be chargeable with the debts of the estate to the
extent of the equitable interest of the estate therein in the real
property, and may be sold in land sale proceedings, except that in
the event of such that sale, the persons to whom the real estate
property shall have been conveyed shall have a prior lien on the
proceeds as against the estate to the extent of any portion of the
purchase price paid by them.
The executor or administrator, or surviving spouse, or any
heir, or any devisee or legatee having an interest in such a the
contract, may file a petition complaint for the alteration or
cancellation of the contract in the probate court of the county in
which the executor or administrator was appointed. If the decedent
died intestate, the surviving spouse and heirs, and if the
decedent died testate, the surviving spouse, and devisees or
legatees having an interest in
such the contract, and the executor
or administrator, when if not the plaintiff, together with the
vendor, and all other persons having an interest in the real
estate which property that is subject to the contract, shall be
made parties defendant. If the court is satisfied that it would be
for the best interests of the estate, the court, with the consent
of the vendor, may authorize the executor or administrator to
agree to the alteration or cancellation of the contract and to
execute and deliver such the deeds or other instruments to the
vendor as that are required to make the order of the court
effective. Such The deeds or other instruments as that are
executed and delivered pursuant to such the court's order shall
recite the order and be as binding on the parties to the suit as
if made by the deceased in his lifetime prior to death.
Sec. 2113.51. The property of an estate which that is
specifically bequeathed may be delivered over to the legatee
entitled thereto to the property. Such The legatee must shall
secure its redelivery on demand to the executor or administrator.
Otherwise, such the property must shall remain in the hands
possession or under the control of the executor or administrator
to be distributed or sold, as required by law and the condition of
the estate.
Sec. 2113.52. (A) A devisee taking real estate property
under a devise in a will, unless the will otherwise provides, or
an heir taking real estate property under the statutes of descent
and distribution shall take the real estate property subject to
all taxes, penalties, interest, and assessments which that are a
lien against that real
estate property.
(B) If real estate property devised in a will is subject to a
mortgage lien that exists on the date of the testator's death, the
person taking the real estate
property under the devise has no
right of exoneration for the mortgage lien, regardless of a
general direction in the will to pay the testator's debts, unless
the will specifically provides a right of exoneration that extends
to that lien.
Sec. 2113.54. When five months have expired after the
appointment of an executor or administrator and the surviving
spouse has made an election under section 2106.01 of the Revised
Code, a legatee or distributee may apply to the probate court for
an order requiring the executor or administrator to distribute the
assets of the estate, either in whole or in part, in cash or in
kind. Upon notice to the executor or administrator, the court
shall inquire into the condition of the estate, and if all claims
have been paid, or adequate provision has been or can be made for
their payment, the court shall make such that order with reference
to distribution of the estate as the condition of the estate and
the protection of all parties interested in the estate may demand.
The order of the court shall provide that assets be set aside for
the payment of claims rejected within two months or in suit, and
each claimant for whom assets are to be set aside shall be
entitled to be fully heard as to the nature and amount of the
assets to be set aside for payment of his the claim, and as to all
other conditions in connection with the claim. Each legatee or
distributee receiving distribution from the estate shall be liable
to return the assets distributed to him the legatee or
distributee, or the proceeds from the assets, if they are
necessary to pay such those claims. The court, upon its own motion
or upon application of the executor or administrator, as a
condition precedent to any distribution, may require any legatee
or distributee to give bond to the state with surety approved and
in an amount fixed by the court, conditioned as provided in
section 2113.53 of the Revised Code or as may be directed by the
court. Such The bond may be in addition to the assets to be set
aside or partially or wholly in lieu of those assets, as the court
shall determine.
Sec. 2113.58. When If by a last will and testament the use
or income of personal property is given to a person for a term of
years or for life and some other person has an a remainder
interest in such the property as remainderman, the probate court,
unless such last the will and testament otherwise provides, may
deliver such authorize delivery of the personal property to the
person having the limited estate, with or without bond, as the
court may determine; or the court may order that such the property
be held by the executor or some other trustee, with or without
bond, for the benefit of the person having the limited estate. If
bond is required of the person having the limited estate, or of
the trustee, it may be increased or decreased, and if bond is not
required in the first instance it may be required by the court at
any time prior to the termination of the limited estate.
Sec. 2113.61. (A)(1) When real property passes by the laws of intestate succession or under a will, the administrator or executor shall file in probate court, at any time after the filing of an inventory that includes the real property but prior to the filing of the administrator's or executor's final account, an application requesting the court to issue a certificate of transfer as to the real property. Real property sold by an executor or administrator or land registered under Chapters 5309. and 5310. of the Revised Code is excepted from the application requirement. Cases in which an order has been made under section 2113.03 of the Revised Code relieving an estate from administration and in which the order directing transfer of real property to the person entitled to it may be substituted for the certificate of transfer also are excepted from the application requirement.
(2) In accordance with division (C)(3)(b) of section 2113.031 of the Revised Code, an application for a certificate of transfer of an interest in real property included in the assets of the decedent's estate shall accompany an application for a summary release from administration under that section. This section applies to the application for and the issuance of the requested certificate of transfer except to the extent that the probate court determines that the nature of any of the provisions of this section is inconsistent with the nature of a grant of a summary release from administration.
(B) Subject to division (A)(2) of this section, the application for a certificate of transfer shall contain all of the following:
(1) The name, place of residence domicile at death, and date
of death of the decedent;
(2) A statement whether the decedent died testate or intestate;
(3) The fact and date of the filing and probate of the will,
if applicable, and the fact and date of the appointment of the
administrator or executor reason the property is being transferred
to the devisee or devisees;
(4) A description of each parcel of real property situated in
this state that is owned by the decedent at the time of death
Whether any spousal elections have been exercised;
(5) Insofar as they can be ascertained, the names, ages,
places of residence, and relationship to the decedent of the
persons to whom each parcel of real property described in division
(B)(4) of this section passed by descent or devise Whether any
disclaimers or assignments have been filed;
(6) A statement that all the known debts of the decedent's estate have been paid or secured to be paid, or that sufficient other assets are in hand to complete the payment of those debts or a statement that the estate is insolvent and the transfer is of the mansion house and is being made to satisfy all or a portion of the spousal allowance for support;
(7) Other pertinent information that the court requires.
(C) Subject to division (A)(2) of this section, within five days following the filing of an application for a certificate of transfer that complies with division (B) of this section, the court shall issue a certificate of transfer for record in each county in this state in which real property so passing is situated, that shall recite all of the following:
(1) The name and date of death of the decedent;
(2) Whether the decedent died testate or intestate and, if
testate, the volume and page of the record of the will;
(3) The volume and page case number of the probate court
record of the administration of the estate;
(4) The names and places of residence of the devisees, the
interests passing to them, the names and places of residence of
the persons inheriting intestate, and the interests inherited by
them, in each parcel of real property described in division (B)(4)
of this section being transferred;
(5) A description of each parcel of real property
described
in division (B)(4) of this section being transferred;
(6) Other information that in the opinion of the court should be included.
(D) If an executor or administrator has failed to file an application for a certificate of transfer before being discharged, the application may be filed by an heir or devisee, or a successor in interest, in the probate court in which the testator's will was probated or, in the case of intestate estates, in the probate court in which administration was had. If no administration was had on an estate and if no administration is contemplated, except in the case of the grant of or contemplated application for the grant of an order of a summary release from administration under section 2113.031 of the Revised Code, an application for a certificate of transfer may be filed by an heir or devisee, or a successor in interest, in the probate court of the county in which the decedent was a resident at the time of death or in which the real property of the decedent is located.
(E) A foreign executor or administrator, when if no ancillary
administration proceedings have been had or are being had in this
state, may file in accordance with this section an application for
a certificate of transfer in the probate court of any county of
this state in which real property of the decedent is located.
(F) When a person who has entered into a written contract for
the sale and conveyance of an interest in real property dies
before its completion, the interest of the decedent in the
contract and the record title to the real property described in
the contract may be transferred to the persons, legatees,
devisees, or heirs at law entitled to the interest of the decedent
in the real property, in the same manner as provided in this
section and sections section 2113.62 and 2113.63 of the Revised
Code for the transfer of real property. The application for the
certificate of transfer and the certificate itself also shall
recite that the real property described in the application or
certificate is subject to a written contract for its sale and
conveyance.
Sec. 2113.62. Upon receipt of the certificate provided for
in section 2113.61 of the Revised Code, the county recorder shall
record it in the books provided for the recording of deeds and
index such those records in the name of the decedent as grantor
and the person to whom the real estate property passes as grantee
in the index provided for the record of deeds.
Sec. 2113.67. When a person entitled to the money invested
or turned into the county treasury under section 2113.64 of the
Revised Code satisfies the probate court of his the person's right
to receive it, the court shall order it to be paid over and
transferred to him the person. In case it has been turned into the
treasury, the county auditor shall give to him the person a
warrant therefor for the money upon the certificate of the probate
judge.
Sec. 2113.68. The probate judge with whom the certificates
or evidences of title required by section 2113.65 of the Revised
Code are deposited and each succeeding judge to whom they come,
and his the judges' sureties, shall be responsible for their
safekeeping and application, as provided in sections 2113.64 to
2113.67, inclusive, of the Revised Code.
Sec. 2113.69. When newly discovered assets come into the
hands possession or under the control of an executor or
administrator after the filing of the original inventory required
by section 2115.02 of the Revised Code, he the executor or
administrator shall administer, account for, and distribute such
those assets in like the same manner as if received prior to the
filing of
such the inventory. Within thirty days, he the executor
or administrator shall file in the probate court an itemized
report of such those assets, with an estimate of the their value
thereof, but shall not be required to make an inventory or
appraisement of the same assets unless ordered to do so by the
court, either upon its own motion or upon the application of any
interested party.
Sec. 2113.70. An executor or administrator appointed in any
other state or country, or his the executor's or administrator's
legal representatives, may be prosecuted in any appropriate court
in this state in
his the capacity of executor or administrator.
Sec. 2113.72. Any court of common pleas may compel a foreign
administrator or executor residing in this state, or having assets
or property herein in this state, to account at the suit of an
heir, distributee, or legatee, who is resident in this state, and
make distribution of the amount found in his hands the possession
or under the control of the foreign administrator or executor to
the respective heirs, distributees, or legatees according to the
law of the state granting such the letters of administration. When
If suits are pending or there are unsettled demands against such
the estate, the court also may require a refunding bond to be
given to such the foreign executor or administrator by the heirs,
distributees, or legatees entitled thereto to that distribution in
case the amount paid is needed to pay debts of the estate.
Sec. 2113.73. When If a foreign administrator or executor
has wasted, misapplied, or converted assets of an estate, or has
insufficient property to discharge his the foreign administrator's
or executor's liability on account of the trust, or his the
foreign administrator's or executor's sureties are irresponsible,
the distributees, heirs, or legatees, in any court of common pleas
or probate court may compel him the foreign administrator or
executor to secure the amounts respectively due to them and any of
his the foreign administrator's or executor's sureties may require
indemnity on account of their liability as bail.
Sec. 2113.74. The several provisional remedies and
proceedings authorized by sections 2113.70 to 2113.73, inclusive,
of the Revised Code, against a foreign executor or administrator
also apply to the person and property of a foreign administrator
or executor. The probate court or the court of common pleas may
make any order or decree touching his a foreign executor's or
administrator's property and effects, or the assets of
such the
estate, necessary for the security of those interested therein in
the property, effects, or assets.
Sec. 2113.75. An executor or administrator appointed in any
other state or country may commence and prosecute an action or
proceeding in any court in this state, in his the capacity as
executor or administrator, in
like the same manner and under like
the same restrictions as a non-resident nonresident is permitted
to sue.
Sec. 2113.81. Where If it appears that a legatee or a
distributee, or a beneficiary of a trust not residing within the
United States or its territories will not have the benefit or,
use, or control of the money or other property due him the legatee
or distributee from
an the estate or due the beneficiary from the
trust, because of circumstances prevailing at the place of
residence of such the legatee, or distributee, or a the
beneficiary of a the trust, the probate court may direct that such
the money be paid into the county treasury to be held in trust or
the probate court may direct that such the money or other property
be delivered to a trustee which. The trustee shall have the same
powers and duties provided in section 2119.03 of the Revised Code
for such that legatee, distributee, beneficiary of a the trust, or
such the persons who may thereafter be entitled thereto to the
money or other property. Such The money or other property held in
trust by such the county treasurer or trustee shall be paid out by
order of the probate judge in accordance with section 2113.82 of
the Revised Code.
The county treasury shall not be liable for interest on such
the money held in trust.
Sec. 2113.82. When a person entitled to money or other
property invested or turned into the county treasurer or to a
trustee under section 2113.81 of the Revised Code satisfies the
probate court of his the person's right to receive it, the court
shall order the county treasurer or the trustee to pay it over to
such the person.
Sec. 2113.85. As used in sections 2113.85 to 2113.90 of the Revised Code:
(A) "Estate" means the gross estate of a decedent who is domiciled in this state, as determined for federal estate tax purposes under Subtitle B of the Internal Revenue Code of 1954, 26 U.S.C. 2001, as amended, for Ohio estate tax purposes under Chapter 5731. of the Revised Code, and for estate tax purposes of any other jurisdiction that imposes a tax on the transfer of property by a decedent who is domiciled in this state.
(B) "Person interested in the estate" means any person who is
entitled to receive, or who has received, any property or property
interest included in the decedent's estate. A "person interested
in the estate" includes, but is not limited to, a personal
representative, guardian, and or trustee. A "person interested in
the estate" does not include a creditor of the decedent or of his
the decedent's estate.
(C) "Tax" means the federal estate tax determined under
Subtitle B of the "Internal Revenue Code of 1954, 26 U.S.C. 2001,
as amended, an Ohio estate tax determined under Chapter 5731. of
the Revised Code, and the estate tax determined by any other
jurisdiction that imposes a tax on the transfer of property by a
decedent who is domiciled in this state.
(D) "Fiduciary" means an executor, administrator, or other
person who, by virtue of his representation of representing the
decedent's estate, is required to pay the tax.
Sec. 2113.86. (A) Unless a will or another governing instrument otherwise provides, and except as otherwise provided in this section, a tax shall be apportioned equitably in accordance with the provisions of this section among all persons interested in an estate in proportion to the value of the interest of each person as determined for estate tax purposes.
(B) Except as otherwise provided in this division, any tax that is apportioned against a gift made in a clause of a will other than a residuary clause or in a provision of an inter vivos trust other than a residuary provision, shall be reapportioned to the residue of the estate or trust. It shall be charged in the same manner as a general administration expense. However, when a portion of the residue of the estate or trust is allowable as a deduction for estate tax purposes, the tax shall be reapportioned to the extent possible to the portion of the residue that is not so allowable.
(C)(1) A tax shall not be apportioned against an interest that is allowable as an estate tax marital or charitable deduction, except to the extent that the interest is a part of the residue of an estate or trust against which tax is reapportioned pursuant to division (B) of this section.
(2) Estate tax of this state or another jurisdiction shall not be reapportioned against an interest that is allowable as a deduction for federal estate tax purposes, to the extent that there is other property in the estate or trust that is not allowable as a deduction for federal estate tax purposes and against which estate tax of this state or another jurisdiction can be apportioned.
(D) A tax shall not be apportioned against property that passes to a surviving spouse as an elective share under section 2106.01 of the Revised Code or as an intestate share under section 2105.06 of the Revised Code, to the extent that there is other property in the estate that is not allowable as a deduction for estate tax purposes against which the tax can be apportioned.
(E)(1) Any federal estate tax credit for state or foreign death taxes on property that is includible in an estate for federal estate tax purposes, shall inure to the benefit of the persons chargeable with the payment of the state or foreign death taxes in proportion to the amount of the taxes paid by each person, but any federal estate tax credit for state or foreign death taxes inuring to the benefit of a person cannot exceed the federal estate tax apportioned to that person.
(2) Any federal estate tax credit for gift taxes paid by a donee of a gift shall inure to the benefit of that donee for purposes of this section.
(3) Credits against tax not covered by division (E)(1) or (2) of this section shall be apportioned equitably among persons in the manner in which the tax is apportioned among them.
(F) Any additional estate tax that is due because a qualified heir has disposed of qualified farm property in a manner not authorized by law or ceased to use any part of the qualified farm property for a qualified use, shall be apportioned against the interest of the qualified heir.
(G) If both a present interest and a future interest in property are involved, a tax shall be apportioned entirely to the principal. This shall be the case even if the future interest qualifies for an estate tax charitable deduction, even if the holder of the present interest also has rights in the principal, and even if the principal is otherwise exempt from apportionment.
(H) Penalties shall be apportioned in the same manner as a tax, and interest on tax shall be apportioned to the income of the estate or trust, unless a court directs a different apportionment of penalties or interest based on a finding that special circumstances make an apportionment as provided in this division inequitable.
(I) If any part of an estate consists of property, the value
of which is included in the gross estate of the decedent by reason
of section 2044 of the "Internal Revenue Code of 1986," 100 Stat.
2085, 26 N 2044, as amended, or of section 5731.131 of the Revised
Code, the estate is entitled to recover from the persons holding
or receiving the property any amount by which the estate tax
payable exceeds the estate tax that would have been payable if the
value of the property had not been included in the gross estate of
the decedent. This division does not apply if a decedent provides
otherwise in his the decedent's will or another governing
instrument provides otherwise and the will or instrument refers to
either section mentioned in this division or to qualified
terminable interest marital deduction property.
Sec. 2113.87. (A) The fiduciary, or any person interested in the estate who objects to the manner of apportionment of a tax, may apply to the court that has jurisdiction of the estate and request the court to determine the apportionment of the tax. If there are no probate proceedings, the probate court of the county in which the decedent was domiciled at death, upon application by the fiduciary or any other person interested in the estate who objects to the manner of apportionment of a tax, shall determine the apportionment of the tax.
(B) The fiduciary may notify any person interested in the
estate of the manner of the apportionment of tax determined by the
fiduciary. Upon receipt of such a that notice, a person interested
in the estate, within thirty days after the date of receipt of the
notice, may indicate his the person's objection to the manner of
apportionment by application to a probate court as described in
division (A) of this section. If the person interested in the
estate fails to make the application within the thirty-day period,
he the person is bound by the manner of apportionment determined
by the fiduciary. The notice described in this division shall
state the name and address of the probate court with jurisdiction
over the apportionment and include the following statement:
"If you fail to file an objection to this proposed apportionment with the probate court within thirty days of the receipt of this notice, you are bound by the proposed apportionment."
(C) If a probate court finds that an assessment of penalties and interest assessed with respect to a tax is due to delay caused by the negligence of the fiduciary, the court may charge the fiduciary with the amount of the assessed penalties and interest. In any suit or judicial proceeding to recover from any person interested in the estate the amount of the tax apportioned to that person, the determination of the probate court is conclusive.
Sec. 2113.88. (A) The fiduciary may withhold from any property distributable to any person interested in the estate the amount of tax attributable to the person's interest. If the property in possession of the fiduciary and distributable to any person interested in the estate is insufficient to satisfy the proportionate amount of the tax determined to be due from that person, the fiduciary may recover the deficiency from that person. If the property is not in the possession of the fiduciary, the fiduciary may recover from any person interested in the estate the amount of the tax apportioned to that person in accordance with this section by filing a complaint to recover the tax in the probate court that has jurisdiction of the administration of the estate.
(B) If the property held by the fiduciary is distributed prior to final apportionment of the tax, the distributee shall provide a bond or other security for the apportionment liability in the form and amount prescribed by the fiduciary, with the approval of the probate court that has jurisdiction of the administration of the estate.
Sec. 2115.02. Within three months after the date of the
executor's or administrator's appointment, unless the probate
court grants an extension of time for good cause shown, the
executor or administrator shall file with the court an inventory
of the decedent's interest in real
estate property located in this
state and of the tangible and intangible personal property of the
decedent that is to be administered and that has come to the
executor's or administrator's possession or knowledge. The
inventory shall set forth values as of the date of death of the
decedent. If a prior executor or administrator has done so, a
successor executor or administrator need not file an inventory,
unless, in the opinion of the court, it is necessary.
Any asset, the value of which is readily ascertainable, is not required to be appraised but shall be included in the inventory.
Sec. 2115.03. If an executor or administrator neglects or
refuses to return an inventory as provided by section 2115.02 of
the Revised Code, the probate court shall issue an order requiring
him the executor or administrator, at an early day specified in
the order, to return an inventory. After personal service of the
order by a person authorized to make the service, if the executor
or administrator, by the day appointed, does not return the
inventory or fails to obtain further time from the court to return
it, or if the order cannot be served personally by reason of his
the executor or administrator absconding or concealing himself
self, the court may remove the executor or administrator and new
letters shall be granted. The letters shall supersede all former
letters testamentary or of administration, deprive the former
executor or administrator of all power, authority, or control over
the estate of the deceased, and entitle the person appointed to
take, demand, and receive the effects of the deceased wherever
they are found.
In every case of the revocation of letters under this
section, the bond given by the former executor or administrator
shall be prosecuted and a recovery had on the bond to the full
extent of any injury sustained by the estate of the deceased by
the former executor's or administrator's acts or omissions, and to
the full value of all the property of the deceased received and
not administered by him the former executor or administrator.
Sec. 2115.06. The real estate property and personal property
comprised in the inventory required by section 2115.02 of the
Revised Code, unless an appraisement thereof of that real property
or personal property has been dispensed with by an order of the
probate court, shall be appraised by one suitable disinterested
person appointed by the executor or administrator, subject to the
approval of the court and sworn to a faithful discharge of his the
trust. The executor or administrator, subject to the approval of
the court, may appoint separate appraisers of property located in
any other county and appoint separate appraisers for each asset.
In lieu of the appointment of an appraiser for real property, the executor or administrator may accept the valuation of the real property by the county auditor.
If appraisers fail to attend to the performance of their
duty, the executor or administrator, subject to the approval of
the probate judge, may appoint others to supply the place of such
delinquents the delinquent appraisers.
Each appraiser shall be paid such an amount for his the
appraiser's services
as that is determined by the executor or
administrator, subject to the approval of the probate judge,
taking into consideration his the appraiser's training,
qualifications, experience, time reasonably required, and the
value of the property appraised. The amount of such the fees may
be charged against the estate as part of the cost of the
proceeding.
Sec. 2115.09. The inventory required by section 2115.02 of
the Revised Code shall contain a particular statement of all
securities for the payment of money that belong to the deceased
and are known to the executor or administrator.
Such The inventory
shall specify the name of the debtor in each security, the date,
the sum originally payable, the indorsements thereon endorsements
on the securities with their dates, the serial numbers or other
identifying data as to each security, and the sum that, in the
judgment of the appraisers, can be collected on each claim.
Such The inventory shall contain a statement of all debts and
accounts belonging to the deceased that are known to
such the
executor or administrator and specify the name of the debtor, the
date, the balance or thing due, and the value or sum that can be
collected thereon on the debt, in the judgment of the appraisers.
Such The inventory shall contain an account of all moneys
that belong to the deceased and have come to into the hands
possession or under the control of the executor or administrator.
If none has come to into the
executor's or administrator's hands
possession or under the control of the executor or administrator,
the fact shall be stated in the inventory.
The inventory shall contain a statement whether or not, insofar as it can be ascertained, the filing of an Ohio estate tax return will be required.
Sec. 2115.10. The emblements raised by labor, whether
severed or not from the land of the deceased at the time of his
the decedent's death, are assets in the hands possession or under
the control of the executor or administrator and shall be included
in the inventory required by section 2115.02 of the Revised Code.
The executor or administrator, or the person to whom he the
executor or administrator sells such the emblements, at all
reasonable times may enter upon the lands to cultivate, sever, and
gather them.
Sec. 2115.11. The discharge or bequest, in a will, of a debt
or demand of a testator against an executor named therein in the
will, or against any other person, is not valid as against the
decedent's creditors, but is only a specific bequest of such that
debt or demand. The amount thereof must of the debt or demand
shall be included in the inventory of the credits and effects of
the deceased and, if necessary, such that amount must shall be
applied in the payment of his the decedent's debts. If not
necessary for that purpose,
such the amount shall be paid in the
same manner and proportion as other specific legacies.
Sec. 2115.12. The naming of a person as executor in a will
shall not operate as a discharge or bequest of a just claim which
that the testator had against such that executor. Such The claim
shall be included among the assets of the deceased in the
inventory required by section 2115.02 of the Revised Code. The
executor shall be liable for it as for so much money in his hands
the possession or under the control of the executor at the time
such that debt or demand becomes due, and must shall apply and
distribute it as part of the personal estate property of the
deceased.
Sec. 2115.16. Upon the filing of the inventory required by
section 2115.02 of the Revised Code, the probate court
forthwith
shall set a day, not later than one month after the day the
inventory was filed, for a hearing on the inventory.
The executor or administrator may serve notice of the hearing, or may cause the notice to be served, upon any person who is interested in the estate. The probate court, after notice to the executor or administrator, either upon the motion of any interested party for good cause shown or at its own instance, may order that notice of the hearing is to be served upon persons the court designates.
For good cause, the hearing may be continued for the time
that the court considers reasonable. Exceptions to the inventory
or to the allowance for support provided by section 2106.13 of the
Revised Code may be filed at any time prior to five days before
the date set for the hearing or the date to which the hearing has
been continued by any person interested in the estate or in any of
the property included in the inventory, but the time limit for the
filing of exceptions shall not apply in case of fraud or
concealment of assets. When exceptions are filed, notice of them
and the time of the hearing on them forthwith shall be given to
the executor or administrator and his the attorney of the executor
or administrator by certified mail or by personal service, unless
the notice is waived. At the hearing, the executor or
administrator and any witness may be examined under oath. The
court shall enter its finding on the journal and tax the costs as
may be equitable.
Sec. 2115.17. When the inventory required by section 2115.02
of the Revised Code has been approved by the probate court, the
appraisement of the real
estate property as set forth therein in
the inventory shall be conclusive for all purposes except estate
tax, unless a reappraisal is ordered by the court.
Sec. 2117.01. No part of the assets of a deceased shall be
retained by an executor or administrator in satisfaction of his
the executor's or the administrator's own claim, until it has been
proved to and allowed by the probate court. Such That debt is not
entitled to preference over others of the same class.
Sec. 2117.02. An executor or administrator within three
months after the date of his appointment shall present any claim
he the executor or administrator has against the estate to the
probate court for allowance. The claim shall not be paid unless
allowed by the court. When an executor or administrator presents a
claim amounting to five hundred dollars or more, the court shall
fix a day not less than four nor more than six weeks from its
presentation, when the testimony touching it shall be heard. The
court forthwith shall issue an order directed to the executor or
administrator requiring him the executor or administrator to give
notice in writing to all the heirs, legatees, or devisees of the
decedent interested in the estate, and to the creditors named in
the order. The notice shall contain a statement of the amount
claimed, designate the time fixed for hearing the testimony, and
be served upon the persons named in the order at least twenty days
before the time for hearing. If any persons mentioned in the order
are not residents of the county, service of notice may be made
upon them by publication for three consecutive weeks in a
newspaper published or circulating in the county, or as the court
may direct. All persons named in the order shall be parties to the
proceeding, and any other person having an interest in the estate
may be made a party.
Sec. 2117.03. At any time after the presentation by an
executor or administrator of a claim which he that the executor or
administrator owns against the estate he the executor or
administrator represents to the probate court for allowance, the
court on its own motion, or on motion by any interested party, may
appoint an attorney to represent the estate, who shall receive
such the compensation from the estate as that may be fixed by the
court. The court shall thereupon require the executor or
administrator to make available to such the attorney, for use in
connection with the proceeding, all documents belonging to the
estate relating to the subject matter of such the claim.
Sec. 2117.04. Upon the hearing as to the allowance of an
executor's or administrator's claim against the estate he the
executor or administrator represents, an appeal may be taken from
a final order or judgment of the probate court upon a matter of
law by any person affected by the order or judgment.
Sec. 2117.061. (A) As used in this section:
(1) "Medicaid estate recovery program" means the program instituted under section 5111.11 of the Revised Code.
(2) "Permanently institutionalized individual" has the same
meaning as in section 5111.11 of the Revised Code.
(3) "Person responsible for the estate" means the executor,
administrator, commissioner, or person who filed pursuant to
section 2113.03 of the Revised Code for release from
administration of an estate.
(B) The person responsible for the estate of a decedent
subject to the medicaid estate recovery program or the estate of a
decedent who was the spouse of a decedent subject to the medicaid
estate recovery program shall submit a properly completed medicaid
estate recovery reporting notice form prescribed under division
(D) of this section to the administrator of the medicaid estate
recovery program not later than thirty days after the occurrence
of any of the following:
(1) The granting of letters of administration or letters testamentary;
(2) The administration of the estate;
(3) The filing of an application for release from
administration or summary release from administration.
(C) The person responsible for the estate shall mark the appropriate box on the appropriate probate form that gives notice to the administrator of the medicaid estate recovery program to indicate compliance with the requirements of division (B) of this section.
The probate court shall send a copy of the completed probate
form to the administrator of the medicaid estate recovery program.
(D) The administrator of the medicaid estate recovery program
shall prescribe a medicaid estate recovery reporting form for the
purpose of division (B) of this section. In the case of a decedent
subject to the medicaid estate recovery program, the form shall
require, at a minimum, that the person responsible for the estate
list all of the decedent's real and personal property and other
assets that are part of the decedent's estate as defined in
section 5111.11 of the Revised Code. In the case of a decedent who
was the spouse of a decedent subject to the medicaid estate
recovery program, the form shall require, at a minimum, that the
person responsible for the estate list all of the decedent's real
and personal property and other assets that are part of the
decedent's estate as defined in section 5111.11 of the Revised
Code and were also part of the estate, as so defined, of the
decedent subject to the medicaid estate recovery program. The
administrator shall include on the form a statement printed in
bold letters informing the person responsible for the estate that
knowingly making a false statement on the form is falsification
under section 2921.13 of the Revised Code, a misdemeanor of the
first degree.
(E) The administrator of the medicaid estate recovery program
shall present a claim for estate recovery to the person
responsible for the estate of the decedent or the person's legal
representative not later than ninety days after the date on which
the medicaid estate recovery reporting notice form is received
under division (B) of this section or one year after the
decedent's death, whichever is later.
Sec. 2117.08. When a claim is presented against the estate
of a deceased person, the executor or administrator may require
satisfactory written proof in support of it and also the affidavit
of the claimant that such the claim is justly due, that no
payments have been made thereon on the claim, and that there are
no counterclaims against it to his the claimant's knowledge. Such
The affidavit shall set forth any security held for the payment of
said the claim and, if the claim is not due, the date of maturity.
If said the claim arises out of tort, or if preference in payment
is claimed, the facts in connection with the alleged tort or
showing the right to such that preference shall be briefly set
forth.
Sec. 2117.09. If an executor or administrator doubts the
justice of any claim presented against the estate he the executor
or administrator represents, he the executor or administrator may
enter into an agreement in writing with the claimant to refer the
matter in controversy to three disinterested persons, who must
shall be approved by the probate judge.
Upon filing the agreement of reference in the probate court of the county in which the letters testamentary or of administration were issued, the judge shall docket the cause and make an order referring the matter in controversy to the referees selected.
The referees thereupon must shall proceed to hear and
determine the matter and make their report to the court. The
referees shall have the same powers and be entitled to the same
compensation and the same proceedings shall be followed as if the
reference were made under the provisions for arbitrations under a
rule of the court of common pleas. The court may set aside the
report of the referees, appoint others in their places, or confirm
such the report and adjudge costs as in actions against executors
and administrators. The judgment of the court thereupon shall be
valid and effectual.
Sec. 2117.10. The failure of the holder of a valid lien upon
any of the assets of an estate to present his the lienholder's
claim upon the indebtedness secured by such the lien, as provided
in Chapter 2117. of the Revised Code this chapter, shall not
affect such
the lien if the same is evidenced by a document
admitted to public record, or is evidenced by actual possession of
the real or personal property which that is subject to such the
lien.
Sec. 2117.13. If a devisee, legatee, heir, creditor, or
other interested party files in the probate court a written
requisition on the executor or administrator to reject a claim
presented for allowance against the estate
he the executor or
administrator represents, whether the claim has been allowed or
not, but which claim has not been paid in full, and enters into a
sufficient bond running to such the executor or administrator, the
amount, terms, and surety of which are to be approved by the
probate judge, the claim shall be rejected by the executor or
administrator. The notice of rejection shall inform the claimant
of the filing of the requisition and of the name of the party
filing the same. The condition of the bond shall be to pay all
costs and expenses of contesting
such the claim, including such
any reasonable fee as that the court allows to the attorney for
the executor or administrator, in case the claim finally is
allowed in whole, and if such the claim is allowed only in part,
to pay such that part of the expenses as that the court may
determine, including such any reasonable fee as that the court may
allow to the attorney for the executor or administrator.
Sec. 2117.15. An executor or administrator may proceed to
pay the debts due from the estate in accordance with Chapters
2113. to 2125. of the Revised Code. If it appears at any time that
the estate is insolvent, the executor or administrator may report
that fact to the court, and apply for any order that
he the
executor or administrator considers necessary because of the
insolvency. In case of insolvency, a creditor who has been paid
according to law shall not be required to make any refund.
Sec. 2117.17. (A) The probate court on its own motion may,
and on motion of the executor or administrator shall, assign all
claims against the estate that have been presented and any other
known valid debts of the estate for hearing on a day certain.
Forthwith upon such Upon the assignment, and in no case less than
ten days before the date fixed for hearing or such a longer period
as
that the court may order, the executor or administrator shall
cause written notice of the hearing to be served upon the
following persons who have not waived the notice in writing or
otherwise voluntarily entered their appearance:
(A)(1) If it appears that the estate is fully solvent, such
the notice shall be given to the surviving spouse and all other
persons having an interest in the estate as devisees, legatees,
heirs, and distributees.
(B)(2) If it appears probable that there will not be
sufficient assets to pay all of the valid debts of the estate in
full, then such the notice also shall be given to all creditors
and claimants whose claims have been rejected and whose rights
have not been finally determined by judgment, reference, or lapse
of time.
(B) The notice required by this section shall state that a
hearing concerning the debts has been scheduled, shall set forth
the time and place of the hearing, and shall state that the action
of the executor or administrator in allowing and classifying
claims will be confirmed at such the hearing unless cause to the
contrary is shown. The notice shall be served personally or by
certified mail in the manner specified for service of notice of
the rejection of a claim under section 2117.11 of the Revised
Code. Proof of service of the notice to the satisfaction of the
court, by affidavit or otherwise, and all waivers of service shall
be filed in court at the time of the hearing. At any time before
hearing, any interested person may file exceptions in writing to
the allowance or classification of any specific claim. The court
may cause or permit other interested persons to be served with
notice and witnesses to be subpoenaed as may be required to
present the issues fully.
(C) The court, upon the hearing, shall determine whether the
executor or administrator acted properly in allowing and
classifying each claim and shall make an order confirming or
disapproving such that action.
(D) An order of the court disapproving the allowance of a
claim shall have the same effect as a rejection of the claim on
the date on which the claimant is served with notice of the
court's order. Notice of the court's order shall be served
personally or by certified mail in the manner specified for
service of notice of the rejection of a claim under section
2117.11 of the Revised Code. An order of the court confirming the
allowance or classification of a claim shall constitute a final
order and shall have the same effect as a judgment at law or
decree in equity, and shall be final as to all persons having
notice of the hearing and as to claimants subsequently presenting
their claims, though without notice of such the hearing. In the
absence of fraud, the allowance and classification of a claim and
the subsequent payment of it in good faith shall not be subject to
question upon exceptions to the executor's or administrator's
accounts. The confirmation of a claim by the court shall not
preclude the executor or administrator from thereafter rejecting
the claim on discovery of error in his the executor's or
administrator's previous action or on requisition as provided in
sections 2117.13 and 2117.14 of the Revised Code.
Sec. 2117.18. Taxes, penalties, and interest placed on a
duplicate or added by the county auditor or the tax commissioner
because of a failure to make a return or because of a false or
incomplete return for taxation shall be a debt of a decedent and
have the same priority and be paid as other taxes. Such Those
taxes, penalties, and interest shall be collectible out of the
property of the estate either before or after distribution, by any
means provided for collecting other taxes. No distribution or
payment of inferior debts or claims shall defeat such that
collection;, but no such the tax, penalty, or interest can shall
not be added before notice to the executor or administrator, and
before an opportunity is given him to the executor or
administrator to be heard. All taxes omitted by the deceased must
shall be charged on the tax lists and duplicate in his the
deceased's name.
In all such additions to the personal tax lists and duplicate
under this section, each succeeding tax year shall be considered
as beginning at the time of the completion of the annual
settlement of the duplicate for the previous year with the county
treasurer.
Sec. 2117.30. (A) No suit shall be brought against an executor or administrator by a creditor of the decedent or by any other party interested in the estate until after five months from the time of the appointment of the executor or administrator, or the expiration of the further time allowed by the probate court for the collection of the assets of the estate, except in the following cases:
(A)(1) On claims rejected in whole or in part;
(B)(2) For the enforcement of a lien against or involving
title to specific property;
(C)(3) For the recovery of a claim that would not be affected
by the insolvency of the estate;
(D)(4) On account of fraud, conversion, or concealment of
assets;
(E)(5) Any other action as to which a different rule is
prescribed by statute.
(B) When an executor or administrator dies, resigns, or is
removed without having fully administered the estate of the
deceased, the time between his the executor's or administrator's
death, resignation, or removal and the appointment of a successor
shall be excluded in computing the five months or longer period
provided in division (A) of this section. In any event, his the
executor's or administrator's successor shall not be held to
answer the suit until after the expiration of four months from the
date of the successor's appointment, or a further time allowed him
the executor or administrator by the court for the collection of
the assets of the estate.
Sec. 2117.31. When two or more persons are indebted in a
joint contract, or upon a judgment founded on such the joint
contract, and either of them dies, his
the decedent's estate shall
be liable therefor for the debt as if the contract had been joint
and several, or as if the judgment had been against himself the
decedent alone. This section shall not affect the rights of a
surety, when certified as such, in a judgment rendered jointly
against him the surety and his the surety's principal.
Sec. 2117.34. No execution against the assets of an estate
shall issue upon a judgment against an executor or administrator
unless upon the order of the probate court which that appointed
him the executor or administrator. If an account has been rendered
by such the executor or administrator and settled by the court,
such the execution shall issue only for the sum that appeared, on
settlement of such the account, to be a just proportion of the
assets applicable to the judgment. The order of the court allowing
such
the execution shall fix the amount for which the
same
execution shall issue.
Sec. 2117.35. All executions against executors and
administrators for debts due from the deceased shall run against
the goods and assets of the estate of the deceased in their hands
the possession or under the control of the executors and
administrators.
Sec. 2117.36. No real estate property of a deceased person
which that has been aliened or encumbered by the decedent's heirs
prior to the issuing of letters testamentary or of administration
shall be liable while in the hands possession or under the control
of a bona fide purchaser for value or to the prejudice of a bona
fide lessee or encumbrancer for value for debts of the deceased
person unless letters testamentary or of administration are
granted within four years from the date of death of such the
deceased person. No real estate property of a deceased person
which that has been aliened or encumbered by the decedent's heirs
or devisees after the
issue issuance of letters testamentary or of
administration shall be liable while in the hands possession or
under the control of a bona fide purchaser for value or to the
prejudice of a bona fide lessee or encumbrancer for value for
debts of a deceased person unless suit is brought to subject such
the real estate property to the payment of such those debts prior
to the settlement of the executor's or administrator's final
account or what purports to be his the executor's or
administrator's final account; provided that if such the final
account is not filed and settled within four years after the
granting of letters testamentary or of administration, but
excluding for the these purposes hereof the time that any action
is pending against the executors or administrators for the
establishment or collection of any claim against the deceased,
such the real
estate property so aliened shall not be liable for
the debts of the deceased unless suit is brought to subject such
the real estate thereto property to those debts within such that
four-year period. The heir or devisee aliening such the real
estate property shall be liable for the its value thereof, with
legal interest from the time of alienation, to the creditors of
the deceased in the manner and within the limitations provided by
law. This section does not enlarge or extend the right of the
creditors of any deceased person against his the deceased person's
real
estate property, or repeal any limitations contained in other
sections of the Revised Code, or apply to mortgages or liens of
record at the time of the death of such the deceased person.
Sec. 2117.37. If a claim is contingent at the time of a
decedent's death and a cause of action subsequently accrues on the
claim, it shall be presented to the executor or administrator, in
the same manner as other claims, before the expiration of one year
six months after the date of death of the decedent, or before the
expiration of two months after the cause of action accrues,
whichever is later, except as provided in section 2117.39 of the
Revised Code. The executor or administrator shall allow or reject
the claim in the same manner as other claims are allowed or
rejected. If the claim is allowed, the executor or administrator
shall proceed to pay it. If the claim is rejected, the claimant
shall commence an action on the claim within two months after the
rejection or be forever barred from maintaining an action on the
claim.
Sec. 2117.41. A claimant whose cause of action accrues as
provided in section 2117.37 of the Revised Code may bring suit to
recover thereon on the claim against the heirs, next of kin,
surviving spouse as next of kin, devisees, and legatees under the
decedent's will, each of whom shall be liable to the claimant in
an amount not exceeding the value of the real and personal estate
property that he
the person received under the will or on
distribution of the estate. If, by the will of the deceased, any
part of the estate or any one or more of the devisees and legatees
is made exclusively liable for the debt, in exoneration of the
residue of the estate or of the other devisees or legatees, the
terms of the will shall be complied with in that respect and the
persons and estate so exempt by the will shall be liable for only
so much of the debt as that cannot be recovered from those first
chargeable therewith with the debt.
No such suit shall be maintained under this section unless
commenced within six months next after the time when the cause of
action first accrues, except in case the suit is for the balance
due after a payment by the executor or administrator, in which
case suit shall be brought within two months after the final
payment by the executor or administrator. If the person entitled
to bring such the suit is under legal disability, he the person
may bring such the action within one year after his the person's
disability is removed.
If any of such those heirs, next of kin, surviving spouse as
next of kin, devisees, or legatees dies without having paid his
the person's just proportion of such the debt, his the executors
or administrators of that deceased person's estate shall be liable
therefor for that proportion to the extent he the deceased person
would have been if living.
Sec. 2117.42. If, in the cases specified in section 2117.41
of the Revised Code, more than one person is liable for the debt,
the creditor shall proceed by one action to recover such the debt
against all so liable, or as many of them
as who are within the
reach of process. Thereupon, by By the verdict of a jury if either
party requires it, the court must shall determine what sum is due
to the plaintiff. They The jury also, according to the equities of
the case, shall decide how much each of the defendants is liable
to pay toward the satisfaction of the debt and the court shall
render judgment accordingly.
No suit shall be dismissed or debarred for not making all the
persons defendants who might have been included as such
defendants. In any stage of the cause the court may award process
to bring in other parties and allow amendments necessary to charge
them, as defendants, upon such the terms as that it deems
considers reasonable.
If any of the persons who were originally liable for the debt
is insolvent or unable to pay his the person's proportion, or is
beyond the reach of process, the others nevertheless shall be
liable to the creditor for the whole amount of
his the debt;
except that no one shall be compelled to pay more than the amount
received by
him the person from the decedent's estate.
If, in consequence of insolvency, absence, or other cause,
any of the persons liable for such the debt fails to pay his the
person's just proportion to the creditor, he the person shall be
liable to indemnify all who, by reason of such that person's
failure on his part, have paid more than their just proportion of
the debt, such indemnity to be recovered by all of them jointly or
in separate actions, by any one or more
of them for his or their
respective parts respectively, at their election.
Sec. 2119.01. When a person owning property in this state
has disappeared and has not been heard from, after diligent
inquiry and for at least three months, under circumstances that
afford reasonable ground to believe that he
the person is dead,
cannot return, or refuses to return to his the person's home, and
his the person's estate requires attention, supervision, and care,
or is needed for the maintenance of
his the person's dependents,
the probate court may, on application of the spouse or of one of
the next of kin, may appoint a trustee to take possession and
charge of the property of such the person, other than the property
with respect to which such the person has made provision by
written instrument designating an agent or attorney in fact. Such
The application shall be filed in the county in which such the
person last resided or if his the person's last known residence
was without outside this state,
such the application may be filed
in any county in which any such that property is situated.
Sec. 2119.02. The probate court, before appointing a trustee
for an absentee, shall cause notice of the filing of the
application under section 2119.01 of the Revised Code and of the
time and place of hearing thereon on the application to be
published once a week for four consecutive weeks in some a
newspaper of general circulation in the county and shall cause
copies of such the notice to be mailed to the spouse and next of
kin of the absentee residing within the state,
excepting except
the applicant, and to the absentee residing at his the absentee's
last known address. The court may order notice to be given to such
any other persons in such the manner as that it deems considers
best.
Sec. 2119.03. (A) The trustee appointed under section 2119.01 of the Revised Code may proceed without order of the probate court to do the following:
(A) To take (1) Take possession of the property of the
absentee wherever situated within the state;
(B) To collect (2) Collect all debts due to the absentee;
(C) To retain (3) Retain and invest the estate in accordance
with Chapters 2113. to 2125. of the Revised Code.
(B) The trustee may pay such that part or all of the income
or principal of the estate as the court, from time to time, may
direct for the maintenance and support of the absentee's
dependents and, under the order of the court, may bring and defend
suits on behalf of the absentee, compromise claims in favor of and
against the absentee, and pay such any debts of the absentee as
that the court finds necessary for the protection of his the
absentee's dependents, including insurance premiums, orders for an
award of spousal support, and other obligations. The court may
make such any other orders as that it deems considers proper for
the care and custody of the property and its proceeds.
Sec. 2119.04. In order to provide money for the payments
authorized by section 2119.03 of the Revised Code, proceedings may
be had for the mortgaging, leasing, or sale of the real estate
property of an absentee in the same manner as provided by sections
2127.01 to 2127.43, inclusive, of the Revised Code, for sales of
real estate property by executors and administrators. The probate
court, upon notice to the spouse and such any other persons and in
such the manner as that the court directs, may order all or any
part of the personal estate property to be sold.
Sec. 2119.05. If at any time the absentee returns and makes
application to the probate court for the termination of the trust
established under section 2119.01 of the Revised Code, the court
shall, on notice to the trustee and other interested parties,
order the trustee to file his a final account and on settlement
thereof of the account shall terminate the trust and order all
remaining property returned. If an executor, administrator, or
guardian is appointed for the estate of such the absentee, the
court shall thereupon order the trustee to file
his a final
account and on settlement thereof of the account shall terminate
the trust and order all of the property remaining in the hands
possession or under the control of the trustee to be delivered to
the fiduciary entitled thereto to the property.
Sec. 2121.01. (A) Except as provided in division (B) of this section, a presumption of the death of a person arises upon either of the following:
(1) When the person has disappeared and been continuously
absent from his the person's place of last domicile for a
five-year period without being heard from during the period;
(2) When the person has disappeared and been continuously
absent from
his the person's place of last domicile without being
heard from and was at the beginning of
his the person's absence
exposed to a specific peril of death, even though the absence has
continued for less than a five-year period.
(B) When a person who is on active duty in the armed services of the United States has been officially determined to be absent in a status of "missing" or "missing in action," a presumption of death arises when the head of the federal department concerned has made a finding of death pursuant to the "Federal Missing Persons Act," 80 Stat. 625 (1966), 37 U.S.C.A. 551, as amended and hereafter amended.
Sec. 2121.02. (A) When such a presumption of death arises
under section 2121.01 of the Revised Code with respect to a person
who at the time of disappearance was domiciled in this state, the
attorney general of this state or any person entitled under the
last will of such the presumed decedent or under Chapter 2105. of
the Revised Code to any share in the presumed decedent's property
within this state, or any person or entity who, under the terms of
any contract, beneficiary designation, trust, or otherwise, may be
entitled to any property, right, or interest by reason of the
death of the presumed decedent, may file a complaint setting forth
the facts
which that raise the presumption of death in the probate
court of the county of the presumed decedent's last residence.
(B) When a presumption of death arises pursuant to section 2121.01 of the Revised Code with respect to a person who at the time of the person's disappearance was domiciled at a place other than within the state, and the presumed decedent owns real property within this state, the complaint may be filed in the county where any part of the real property of the presumed decedent is located by any of the persons or entities referred to in division (A) of this section, or by any domiciliary executor or administrator of the decedent. A foreign fiduciary shall include with the complaint an exemplified copy of the domiciliary proceedings pursuant to which the foreign fiduciary was appointed.
(C) In the case of a presumed decedent who was domiciled in this state, the complainant shall name as parties defendant the presumed decedent and each of the following that do not join in the complaint:
(1) The presumed decedent's surviving spouse, if any;
(2) All persons known to the complainant who are entitled
under the presumed decedent's last will and all persons who are
entitled under Chapter 2105. of the Revised Code to any share of
the presumed decedent's property;
(3) All persons or entities known to the complainant who have or would have by reason of the presumed decedent's death any right or interest under any contract, beneficiary designation, trust, or otherwise;
(4) All contract obligors known to the complainant whose rights or obligations would be affected by a determination that the presumed decedent is in fact dead.
(D) In the case of a presumed decedent who was not domiciled
in this state but who owned real estate property in this state,
the complainant shall name as parties defendant each of the
following that do not join in the complaint:
(1) The presumed decedent's surviving spouse, if any;
(2) All persons known to the complainant who are entitled
under the presumed decedent's last will and all persons who are
entitled under Chapter 2105. of the Revised Code to any share of
the presumed decedent's real property within this state.
(E) All parties defendant, other than the presumed decedent, shall be served with summons in the same manner as provided by the Rules of Civil Procedure.
(F) The complainant shall cause to be advertised once a week
for four consecutive weeks in a newspaper published in the county,
the fact that the complaint has been filed together with a notice
that on a day certain, which that shall be at least four weeks
after the last appearance of the advertisement, or after the final
publication where any defendant is being served by publication,
whichever is later, the probate court will hear evidence relevant
to the allegations of the complaint.
(G) No guardian ad litem, trustee for the suit, or other representative shall be required to be appointed to represent the presumed decedent in the proceeding.
Sec. 2121.05. (A) Except as provided otherwise in Chapter
2121. of the Revised Code this chapter, all of the proceedings for
the probate of the decedent's last will, if any, and all the
proceedings, domiciliary or ancillary, for the administration of
the decedent's estate that are set forth in the Revised Code for
use upon the death of a decedent, shall upon the signing of the
decree of presumed death be instituted and carried on in the same
manner as if the presumed decedent were in fact dead. All acts
pursuant to these proceedings shall be as valid as if the presumed
decedent were in fact dead.
(B) Following the decree the court may make such any
supplementary orders as that in its discretion are necessary to
consummate any right or interest arising by reason of the death of
the presumed decedent under any contract, trust, or other
nonprobate property interest of any person or entity who was a
party to the proceedings. The court may condition the granting of
any such that order by requiring any person or entity who would
benefit thereby by the order to furnish bond for a three-year
period after the decree in the form and amount, with or without
sureties, as the court shall order. If any supplementary order is
directed to the holder of assets of the presumed decedent which
that were created by the decree of presumed death, the court, at
the request of the party defendant to whom the order is directed,
shall condition the granting of any such that order by requiring
any person or entity who would benefit thereby by the order to
furnish a suretyship bond for a three-year period after the decree
in the amount of the assets so created by the decree with interest
for the period of the bond at the rate specified in the order.
(C) The term "assets of the presumed decedent which that were
created by the decree of presumed death" as used in division (B)
of this section and division (D) of section 2121.08 of the Revised
Code, means those potential assets of the presumed decedent in
which the presumed decedent had a contractual or other right,
contingent upon the presumed decedent's death, to have such those
assets paid to his the presumed decedent's designee and the decree
of presumed death would fulfill the contingency. Only that portion
of the proceeds of life insurance policies on the life of the
presumed decedent that exceeds any net cash surrender value of
such the policies on the date of the decree is within the
definition of the term "assets of the presumed decedent which that
were created by the decree of presumed death."
(D) The bond shall provide that, if within the three-year
period after the decree is entered by the court it is established
that the presumed decedent is alive, such the person or entity
shall on the subsequent order of the court refund or return any
sums, with interest as provided in the court order, or property
received by virtue of such the order, to the presumed decedent or
to the person or entity who, by reason of the erroneous finding of
death of the presumed decedent, made such the payment or delivered
such the property. The bond shall be further conditioned on
returning the fair value of the property if the same shall have
been sold or otherwise disposed of in the interim.
(E) If the person or entity who would benefit by an order, as
provided in division (B) of this section, fails to provide a bond
for the amount of the assets of the presumed decedent which that
were created by the decree, with interest as specified in the
order, the holder shall hold those assets for the three-year
period they would have been bonded. In that event, the holder
shall pay interest at the same rate specified in the order as a
condition of the bond and the interest shall accumulate and be
held throughout that period.
(F) Nothing in this section shall preclude such the person or
entity from selling, encumbering, or otherwise disposing of any
property so received and any purchaser, transferee, or mortgagee
acquires good title to such the property free and clear of any
claim of the presumed decedent.
Sec. 2121.06. Upon the signing of the decree establishing
the death of the presumed decedent, the real estate property of
the presumed decedent passes and
devloves
devolves as in the case
of actual death, and the persons entitled by will, or under
Chapter 2105. of the Revised Code, may enter and take possession.
Persons taking the real estate property may sell or mortgage it
and the purchaser or mortgagee takes a good title, free and
discharged of any interest or claim of the presumed decedent. The
persons taking such the real
estate property shall not sell,
convey, or mortgage any part thereof of the property within the
three-year period specified in section 2121.08 of the Revised Code
without first giving bond in an amount to be fixed by the probate
court and with sureties to be approved by the court. In the
discretion of the court the bond may be taken without sureties.
Such The bond shall be conditioned to account for and pay over to
the presumed decedent, in case within the three-year period after
the decree is entered by the court it is established that the
presumed decedent is still alive, the value of the real
estate
property sold or conveyed, or in the case of the making of a
mortgage, to pay the amount of the mortgage and interest
thereon
on the mortgage, or in case of a foreclosure of such that
mortgage, to account for and pay over the value of the real estate
property mortgaged.
Sec. 2121.08. (A) The probate court may at any time within a
three-year period from the date of the decree establishing the
death of a presumed decedent, upon proof satisfactory to the court
that the presumed decedent is in fact alive, vacate the decree
establishing the presumption of his death. After the decree has
been vacated all the powers of the executor or administrator of
the presumed decedent cease, but all proceedings had and steps
taken with respect to the administration of the estate of the
presumed decedent prior to the vacating of such the decree remain
valid. The executor or administrator of the estate of such the
presumed decedent who is found to be alive shall settle his the
account of his
the executor's or administrator's administration
down to the time of the vacating of the decree and shall transfer
all assets remaining in his hands the possession or under the
control of the executor or administrator to the person as whose
for whom the executor or administrator he has acted is acting, or
to such that person's authorized agent or attorney.
(B) The title of any person to any money, property, right, or
interest as surviving spouse, next of kin, heir, legatee, devisee,
co-owner with right of survivorship, beneficiary or other
contractual payee, successor to a trust interest, or otherwise of
the presumed decedent shall be subject to this section, and upon
vacating of such the decree as provided in this section any
property, money, right, or interest, or the its fair value thereof
if the same shall have been sold or otherwise disposed of, may be
recovered from the person who had received
any such that property,
money, right, or interest.
(C) Except as provided in division (D) of this section, in
any action against a beneficiary for the recovery of property or
the value thereof of the property, or upon the bond given as
condition for delivery of money, other personal property, or sale
or encumbrance of real property, the beneficiary may set off as
against such that claim, an allowance for services rendered in
maintaining or preserving the property, and for any moneys or
other considerations made or given by the beneficiary for the
preservation, care, or maintenance of the property during the
period of absence of the person erroneously presumed to be dead,
and the reasonable value of any part of the property used for
support by those whom the person erroneously presumed to be dead
had a legal obligation to support during his the person's absence.
(D) There shall be no set off as against those assets defined
in division (C) of section 2121.05 of the Revised Code to be
assets of the presumed decedent which that were created by the
decree of presumed death. Those assets created by the erroneous
decree of presumed death shall be returned with interest to the
person entitled thereto to them.
(E) Any net cash surrender value on any policies of life
insurance on the life of a person erroneously presumed to be dead
are subject to the set off provision in division (C) of this
section. The person erroneously presumed to be dead, or persons
claiming under him the person erroneously presumed to be dead, may
recover whatever remains of cash values from the person to whom
paid. Such The claimants have no recourse against the insurance
company which that made such the payments, and it is discharged
from liability on the policies affected.
Sec. 2121.09. After vacation of the decree of the
presumption of death has been established, as provided by section
2121.08 of the Revised Code, the person erroneously presumed to be
dead may, on motion filed of record stating the facts, may be
substituted as plaintiff or petitioner in all actions or
proceedings brought by the executor or administrator, whether
prosecuted to judgment or decree or otherwise. Such That person
may, in all actions or proceedings previously brought against the
executor or administrator, may be substituted as defendant or
respondent, on motion filed by him the person or on his
the
person's behalf, but shall not be compelled to go to trial in less
than three months from the time of filing of such the motion.
Judgments or decrees recovered against the executor or
administrator, before the vacation of the decree, may be opened on
application made by the person erroneously presumed to be dead
within three months after the vacating of the decree, provided it
is supported by an affidavit alleging the existence of facts which
that would be a valid defense. If the application is not made
within the three months or is made but the supporting alleged
facts are adjudged an insufficient defense, the judgment or decree
is conclusive to all intents, saving the defendant's right to
review as in other cases on appeal.
Sec. 2123.02. In a situation described in section 2123.01 of
the Revised Code, the executor or administrator may file in the
probate court of the county where the estate is being administered
a petition complaint signed by such the executor or administrator
or his the executor's or administrator's attorney, which petition
complaint shall be verified. The surviving spouse and the legatees
and devisees, or the heirs and distributees of the decedent,
including those whose names are unknown, shall be made parties
defendant. The petition complaint shall contain a concise
statement of the pertinent facts and shall conclude with a prayer,
for the determination of the heirs and distributees of such the
decedent or of the devisees or legatees not named in the will and
their respective interests in the estate.
Sec. 2123.03. Upon the filing of the petition complaint
mentioned in section 2123.02 of the Revised Code, the same
proceedings, pleadings, and rule days as in civil actions in the
court of common pleas shall apply. All parties defendant who are
known to be residents of the state and whose place places of
residence is are known shall be served with summons, as provided
for the service of summons in civil actions in such that court.
Sec. 2123.05. At the time assigned for the hearing of a
proceeding set forth under section 2123.01 of the Revised Code, or
at any time to which said the hearing may be adjourned, the
probate court may hear proof taken by commission, or by witnesses
produced in open court, of the facts set forth in the petition
complaint, and shall, if satisfied from the evidence, find and
adjudge who are or were the heirs or next of kin of the decedent,
and entitled by the laws of this state to inherit the estate of
the deceased, or the devisees or legatees named or unnamed in the
will, which. The finding and adjudication shall be entered on the
journal of the court, which entry, or a certified copy thereof of
the entry, shall be prima facie evidence of the facts therein
found.
Sec. 2123.06. Whenever it is necessary for any person other
than an executor or administrator to determine who are or were the
heirs at law of a deceased person, on the petition complaint of
any interested party and proceedings like similar to those set
forth in sections 2123.01 to 2123.05, inclusive, of the Revised
Code, the probate court may make a determination thereof of who
are or were the heirs at law of the deceased person.
Sec. 2127.011. (A) In addition to the other methods provided
by law or in the will and unless expressly prohibited by the will,
an executor or administrator may sell at public or private sale,
grant options to sell, exchange, re-exchange, or otherwise dispose
of any parcel of real estate property belonging to the estate at
any time at prices and upon terms as that are consistent with this
section and may execute and deliver deeds and other instruments of
conveyance if all of the following conditions are met:
(1) The surviving spouse, all of the legatees and devisees in
the case of testacy, and all of the heirs in the case of
intestacy, give written consent to a power of sale for a
particular parcel of real estate property or to a power of sale
for all the real estate property belonging to the estate. Each
consent to a power of sale provided for in this section shall be
filed in the probate court.
(2) Any sale under a power of sale authorized pursuant to this section shall be made at a price of at least eighty per cent of the appraised value, as set forth in an approved inventory.
(3) No power of sale provided for in this section is
effective if the surviving spouse, or any legatee, devisee, or
heir is a minor. No person may give the consent of the minor that
is required by this section.
(B) A surviving spouse who is the executor or administrator
may sell real estate property to himself self pursuant to this
section.
Sec. 2127.02. As soon as an executor or administrator
ascertains that the personal property in his hands the possession
or under the control of the executor or administrator is
insufficient to pay all the debts of the decedent, together with
the allowance for support to the surviving spouse, minor children,
or surviving spouse and minor children of the decedent as provided
in section 2106.13 of the Revised Code, and the costs of
administering the estate, he the executor or administrator shall
commence a civil action in the probate court for authority to sell
the decedent's real property.
Sec. 2127.04. (A) With the consent of all persons entitled
to share in an estate upon distribution, the executor,
administrator, or administrator with the will annexed may, and
upon the request of these persons shall, commence an action in the
probate court for authority to sell any part or all of the
decedent's real estate property, even though the real estate
property is not required to be sold to pay debts or legacies. A
guardian may make a request under this division, or give consent,
on behalf of the guardian's ward.
(B) An executor, administrator, or administrator with the
will annexed may commence an action in the probate court, on the
executor or administrator's own motion, to sell any part or all of
the decedent's real
estate property, even though the real estate
property is not required to be sold to pay debts or legacies. The
court shall not issue an order of sale in the action unless one of
the categories specified in divisions (B)(1)(a), (b), and (c),
(B)(2)(a), (b), and (c), and (B)(3) of this section applies:
(1)(a) At least fifty per cent of all the persons interested
in the real estate property proposed to be sold have consented to
the sale.
(b) Prior to the issuance of the order, no written objection
is filed with the court by any person or persons who hold
aggregate interests in the interest of the decedent in the real
estate property proposed to be sold, that total in excess of
twenty-five per cent.
(c) The court determines that the sale is in the best interest of the decedent's estate.
(2)(a) No person's interest in the interest of the decedent
in the real estate property proposed to be sold exceeds ten per
cent.
(b) Prior to the issuance of the order, no written objection
is filed with the court by any person or persons who hold
aggregate interests in the interest of the decedent in the real
estate property proposed to be sold, that total in excess of
twenty-five per cent.
(c) The court determines that the sale is in the best interest of the decedent's estate.
(3) The real estate property proposed to be sold escheats to
the state under division (K) of section 2105.06 of the Revised
Code.
(C) Notwithstanding any provision of the Revised Code, an
executor, administrator, or administrator with the will annexed
shall commence an action in the probate court to sell any part or
all of the decedent's real estate property if any person who is
entitled to inherit all or part of the real estate property cannot
be found after a due and diligent search. The court shall not
issue an order of sale in the action unless the sale is in the
best interest of the person who cannot be found and in the best
interest of the decedent's estate.
If a sale is ordered under this division, the costs of its administration shall be taken from the proceeds of the sale.
(D) A surviving spouse who is an executor or administrator of
the decedent spouse's estate is not disqualified, by reason of
being executor or administrator, as a person to whom a parcel of
real estate property may be sold pursuant to this section.
Sec. 2127.05. Whenever necessary for the education, support,
or the payment of the just debts of the ward, or for the discharge
of liens on the real estate property of the ward, or wherever
whenever the real estate property of the ward is suffering
unavoidable waste, or a better investment of its value can be
made, or whenever it appears that a sale of the real estate
property will be for the benefit of the ward or his the ward's
children, the guardian of the person and estate or of the estate
only of a minor, person unable to manage his the person's property
because of mental illness or deficiency, habitual drunkard,
confined person, or other person under disability may commence a
civil action in the probate court for authority to sell all or any
part of the real estate property of the ward. If it appears to the
advantage of the ward to lay out all or any part of the land real
property in town lots, application for such that authority may
also be made in the action.
When the same person is guardian for two or more wards whose
real estate property is owned by them jointly or in common, the
actions may be joined, and in one complaint the guardian may ask
for the sale of the interest of all or any number of his the
guardian's wards in the real estate property. If different persons
are guardians of wards interested jointly or in common in the same
real estate property, they may join as parties plaintiff in the
same action. On the hearing, in either case, the court may
authorize the sale of the interest of one or more of the wards.
Sec. 2127.06. If the fiduciary who brings an action under
section 2127.01 to 2127.43, inclusive, of the Revised Code, dies,
resigns, or is removed, or
his the fiduciary's powers cease at any
time before the real estate property sold is conveyed, a successor
fiduciary may be substituted as a party to the action and may
convey land real property, whether sold before or after his the
successor fiduciary's appointment. He The successor fiduciary may
also be required to give an additional bond.
Sec. 2127.07. Any interest in real estate property, whether
legal or equitable, which that the deceased had a right to sell or
dispose of at the time of his decease the deceased's death, or of
which the ward was seized at the time the action was brought,
including coal, iron ore, limestone, fireclay, or other mineral
upon or under such the real
estate property, or the right to mine
them, may be sold by an executor, administrator, or guardian under
sections 2127.01 to 2127.43, inclusive, of the Revised Code. This
section does not give an executor or administrator with the will
annexed authority to sell real estate property for the payment of
legacies, other than as charged by the testator or by operation of
law. This section does not give a guardian authority to sell an
equitable estate in real estate property placed by deed of trust,
beyond the power of the ward to sell, convey, or assign.
Sec. 2127.08. When the interest of a decedent or ward in
real estate property is fractional and undivided, the action for
authority to sell such the real estate property shall include only
such the undivided fractional interest, except that the executor,
administrator, or guardian, or the owner of any other fractional
interest, or any lien holder may, by pleading filed in the cause
setting forth all interests in the property and liens thereon on
the property, require that the action include the entire interest
in the property, and the owner of said the interests and liens
shall receive his the owner's respective share of the proceeds of
sale after payment has been made of the expenses of sale including
reasonable attorney fees for services in the case, which. Those
fees must shall be paid to the plaintiff's attorney unless the
court awards some part thereof of the fees to other counsel for
services in the case for the common benefit of all the parties,
having regard to the interest of the parties, the benefit each may
derive from the sale, and the equities of the case. The fees of
the executor, administrator, or guardian shall be a charge only
against such the portion of the proceeds of sale
as that
represents the interests of the decedent or ward.
Sec. 2127.09. An action by an executor, administrator, or
guardian to obtain authority to sell real estate property shall be
brought in the county in which
he the executor, administrator, or
guardian was appointed or in which the real estate property
subject to sale or any part thereof of the property is situated.
If the action is brought in a county other than that in which the
real estate property or a part thereof of the property is
situated, a certified transcript of the record of all proceedings
had therein in that county shall be filed with and recorded by the
probate court of each county in which such the real estate
property or any part thereof of the property is situated.
Sec. 2127.10. An action to obtain authority to sell real
estate property shall be commenced by the executor, administrator,
or guardian by filing a complaint with the probate court.
The complaint shall contain a description of the real estate
property proposed to be sold and its value, as near as can be
ascertained, a statement of the nature of the interest of the
decedent or ward in the real estate property, a recital of all
mortgages and liens upon and adverse interests in the real estate
property, the facts showing the reason or necessity for the sale,
and any additional facts necessary to constitute the cause of
action under the section of the Revised Code on which the action
is predicated.
Sec. 2127.11. When the actual market value of a decedent's
or ward's real
estate property to be sold is less than three
thousand dollars, and the court so finds, it may by summary order
authorize the sale and conveyance of the land real property at
private sale, on such the terms as that it deems considers proper,
and in such a that proceeding, all requirements of sections
2127.01 to 2127.43 of the Revised Code, as to service of summons,
appraisal, and additional bond, shall be waived.
Sec. 2127.12. In an action by an executor or administrator
to obtain authority to sell real estate property, the following
persons shall be made parties defendant:
(A) The surviving spouse;
(B) The heirs, devisees, or persons entitled to the next
estate of inheritance from the decedent in the real estate
property and having an interest in it, but their spouses need not
be made parties defendant;
(C) All mortgagees and other lienholders whose claims affect
the real estate property or any part of it;
(D) If the interest subject to sale is equitable, all persons holding legal title to the interest or any part of it, and those who are entitled to the purchase money for it, other than creditors;
(E) If a fraudulent transfer is sought to be set aside, all persons holding or claiming under the transfer;
(F) All other persons having an interest in the real estate
property.
Sec. 2127.13. In an action by a guardian to obtain authority
to sell the real
estate property of his the guardian's ward the
following persons shall be made parties defendant:
(A) The ward;
(B) The spouse of the ward;
(C) All persons entitled to the next estate of inheritance
from the ward in
such the real estate property who are known to
reside in Ohio, but their spouses need not be made parties
defendant;
(D) All lienholders whose claims affect such the real estate
property or any part thereof of the property;
(E) If the interest subject to such the sale is equitable,
all persons holding legal title thereto to the real property or
any part thereof of the property;
(F) All other persons having an interest in such the real
estate property, other than creditors.
Sec. 2127.14. Service of summons, actual or constructive, in
an action to sell the real estate property of a decedent or a ward
shall be had as in other civil actions, but if any competent
person in interest enters appearance or consents in writing to the
sale, service on such that person shall not be necessary. If all
parties consent in writing to the sale, an order therefor for the
sale may issue forthwith.
Sec. 2127.15. All pleadings and proceedings in an action to
obtain authority to sell the real estate property of a decedent or
a ward in the probate court shall be the same as in other civil
actions, except as otherwise provided in sections 2127.01 to
2127.43 of the Revised Code.
Sec. 2127.16. In a sale of real estate property by an
executor, administrator, or guardian, such the real estate
property shall be sold free of all right and expectancy of dower
therein in the property, but out of the proceeds of the sale, in
lieu of dower, the court shall allow to the person having any
dower interest in the property such a sum in money as that is the
just and reasonable value of such the dower, unless the answer of
such the person waives such that allowance.
Sec. 2127.17. In an action to obtain authority to sell real
estate property, if a party in his the party's answer objects to
an order for the sale of real estate property by an executor,
administrator, or guardian, and on hearing it appears to the court
that either the complaint or the objection is unreasonable, it may
award costs to the party prevailing on that issue.
Sec. 2127.18. Upon the hearing of an action to obtain
authority to sell real
estate property by an executor,
administrator, or guardian, if satisfied that all necessary
parties defendant are properly before the court, and that the
demand for relief ought to be granted, the court may determine the
equities among the parties and the priorities of lien of the
several lien holders on the real
estate property, and order a
distribution of the money arising from the sale in accordance with
its determination. The court may in the same cause order
contributions among all parties in interest.
Sec. 2127.19. When an action to obtain authority to sell
real estate property is determined by the probate court, the
probate judge shall make the necessary order for an entry of
release and satisfaction of all mortgages and other liens upon the
real estate property except such the mortgage as that is assumed
by the purchaser. The executor, administrator, or guardian shall
thereupon enter
such the release and satisfaction, together with a
memorandum of the title of the case, the character of the
proceedings, and the volume and page of record where recorded,
upon the record of such the mortgage, judgment, or other lien in
the office where it appears as matter of record. If the executor,
administrator, or guardian fails to enter such the release and
satisfaction, the court may, on the application of an interested
party, may enter such the release and satisfaction and tax in his
the executor's, administrator's, or guardian's cost bill the fee
provided by law for entering
such the release and satisfaction,
and a fee of twenty-five cents to the court.
Sec. 2127.21. If a guardian's complaint in an action to
obtain authority to sell real estate property seeks to have land
real property laid out in town lots, and the court finds it to the
advantage of the ward, it shall authorize the survey and platting
of the land real property as provided by law. Upon subsequent
return of the survey and plat, the court, if it approves it, shall
authorize the guardian on behalf of
his the guardian's ward to
sign, seal, and acknowledge the plat in that behalf for record.
Sec. 2127.22. If an appraisement of the real estate property
is contained in the inventory required of an executor or
administrator by section 2115.02 of the Revised Code, and of a
guardian by section 2111.14 of the Revised Code, the probate court
may order a sale in accordance with the appraisement, or order a
new appraisement. If a new appraisement is not ordered, the value
set forth in the inventory shall be the appraised value of the
real estate property. If the court orders a new appraisement, the
value returned shall be the appraised value of the real estate
property.
If the interest of the deceased or ward in the real estate
property is fractional and undivided, and if a party requests and
the court orders the entire interest in the real estate property
to be sold, a new appraisement of the entire interest in the real
estate property shall be ordered.
If the relief requested is granted and new appraisement is
ordered, the court shall appoint one, or on request of the
executor, administrator, or guardian, not exceeding three
judicious and disinterested persons of the vicinity, not next of
kin of the complainant, to appraise the real estate property in
whole and in parcels at its true value in money. Where If the real
estate property lies in two or more counties the court may appoint
appraisers in any or all of the counties in which the real estate
property or a part of it is situated.
Sec. 2127.23. The appraisers appointed under section 2127.22
of the Revised Code shall agree to truly and impartially appraise
the real estate property at its fair cash value upon actual view
and to perform the duties required of them by the order of the
court. The appraisement shall be signed by the appraisers, and the
officer to whom it is issued shall make return of it to the court
for confirmation.
Sec. 2127.24. When If a person appointed by the court under
section 2127.22 of the Revised Code as an appraiser fails to
discharge his the person's duties, the probate judge on his the
judge's own motion or on the motion of the executor,
administrator, or guardian may appoint another appraiser.
Sec. 2127.27. Upon the return and approval of the
appraisement provided for by section 2127.22 of the Revised Code,
the court shall require the executor, administrator, or guardian
to execute a bond with two or more personal sureties, or one or
more corporate sureties, whose qualifications shall be those
provided by section 2109.17 of the Revised Code. Such The bond
shall be payable to the state in an amount which that the court
deems considers sufficient, having regard to the amount of real
estate property to be sold, its appraised value, the amount of the
original bond given by the executor, administrator, or guardian,
and the distribution to be made of the proceeds arising from the
sale, and such. The bond shall be conditioned for the faithful
discharge of his the executor's, administrator's, or guardian's
duties and the payment of, and accounting for, all moneys arising
from such the sale according to law. Such The bond shall be
additional to that given by the executor, administrator, or
guardian at the time of
his appointment. If the court finds the
amount of the original bond given by the executor, administrator,
or guardian is sufficient, having regard for the amount of real
estate property to be sold, its appraised value, and the
distribution to be made of the proceeds arising from the sale, the
giving of additional bond may be dispensed with by order of the
court. Such The bond shall be given in the court from which the
executor, administrator, or guardian received his appointment was
appointed.
If the action to obtain authority to sell real estate
property is pending in another court, the latter shall proceed no
further until there is filed therein in that court a certificate
from the court wherein in which the executor, administrator, or
guardian received his appointment was appointed, under its seal,
that such the bond has been given or that the original bond is
sufficient. This section does not prevent the court in an action
to sell real estate property from ordering the sale of such that
real estate property without bond in cases where the testator had
provided by his the testator's will that the executor need not
give bond.
Sec. 2127.28. The probate court may, after notice to all
parties in interest, allow a real estate commission in an action
to sell real estate property by an executor, administrator, or
guardian, but an allowance shall be passed upon by the court prior
to the sale.
The court may allow payment for certificate or abstract of
title or policy of title insurance in connection with the sale of
any land real property by an executor, administrator, or guardian.
Sec. 2127.29. When the bond required by section 2127.27 of
the Revised Code is filed and approved by the court, it shall
order the sale of the real estate property included in the
complaint set forth in section 2127.10 of the Revised Code, or the
part of the real estate property it deems considers necessary for
the interest of all parties concerned. If the complaint alleges
that it is necessary to sell part of the real estate property, and
that by the partial sale the residue of the estate real property,
or a specific part of it, would be greatly injured, the court, if
it so finds, may order a sale of the whole estate real property.
Sec. 2127.30. If the order of sale set forth in section
2127.29 of the Revised Code includes real estate property in which
the ward or the estate has an equitable interest only, the court
may make an order for the appraisement and sale of such that
equitable estate free from dower, for the indemnity of the estate
against any claim for purchase money, and for payment of the value
of such the dower in money, as the court deems considers
equitable, having regard for the rights of all parties in
interest.
Sec. 2127.32. The real estate property included in the
court's order of sale, as provided in section 2127.29 of the
Revised Code, shall be sold either in whole or in parcels at
public auction at the door of the courthouse in the county in
which the order of sale was granted, or at another place, as the
court directs, and the order shall fix the place, day, and hour of
sale. If it appears to be more for the interest of the ward or the
estate to sell the real estate property at private sale, the court
may authorize the complainant to sell it either in whole or in
parcels. If an order for private sale is issued, it shall be
returned by the complainant. Upon motion and showing of a person
interested in the proceeds of the sale, filed after thirty days
from the date of the order, the court may require the complainant
to return the order, if the premises have not been sold.
Thereupon
Upon return of the order, the court may order the real estate
property to be sold at public sale.
If upon showing of any person interested, the court finds that it will be to the interest of the ward or the estate, it may order a reappraisement and sale in parcels.
If the sale is to be public, the executor, administrator, or
guardian must shall give notice of the time and place of the sale
by advertisement at least three weeks successively in a newspaper
published in the county where the lands are real property is
situated.
Sec. 2127.33. Where If the sale authorized by a court as
provided in section 2127.32 of the Revised Code is private, the
real estate property shall not be sold for less than the appraised
value. When If the sale is at public auction, the real
estate
property if improved shall not be sold for less than two thirds of
the appraised value, or if not improved, for less than one half of
the appraised value. In private sales if no sale has been effected
after one bona fide effort to sell under this section, or if in
public sales the land real property remains unsold for want of
bidders when offered pursuant to advertisement, the court may fix
the price for which such the real estate property may be sold or
may set aside the appraisement and order a new appraisement. If
such the new appraisement does not exceed five hundred dollars,
and upon the first offer thereunder under the new appraisement at
public sale there are no bids, then upon the motion of any party
interested the court may order the real estate property to be
readvertised and sold at public auction to the highest bidder.
Sec. 2127.34. The order for the sale of real estate
property, granted by the probate court in an action by an
executor, administrator, or guardian, shall prescribe the terms of
the sale, and payment of the purchase money, either in whole or in
part, for cash, or on deferred payments. In the sales by executors
or administrators, deferred payments shall not exceed two years
with interest.
Sec. 2127.35. An executor, administrator, or guardian shall
make return of his the executor's, administrator's, or guardian's
proceedings under the order for the sale of real estate property
granted by the probate court. The court, after careful
examination, if satisfied that the sale has in all respects been
legally made, shall confirm the sale, and order the executor,
administrator, or guardian to make a deed to the purchaser.
The deed shall be received in all courts as prima-facie
evidence that the executor, administrator, or guardian in all
respects observed the direction of the court, and complied with
the requirements of the law, and shall convey the interest in the
real estate property directed to be sold by the court, and shall
vest title to the interest in the purchaser as if conveyed by the
deceased in his the deceased's lifetime, or by the ward free from
disability, and by the owners of the remaining interests in the
real estate property.
Sec. 2127.36. The order for the sale of real estate property
granted in an action by an executor, administrator, or guardian
shall require that before the delivery of the deed the deferred
installments of the purchase money be secured by mortgage on the
real estate property sold, and mortgage notes bearing interest at
a rate approved by the probate court. If after the sale is made,
and before delivery of the deed, the purchaser offers to pay the
full amount of the purchase money in cash, the court may order
that it be accepted, if for the best interest of the estate or the
ward, and direct its distribution.
The court in such an that order may also direct the sale,
without recourse, of any or all of the notes taken for deferred
payments, if for the best interest of the estate or the ward, at
not less than their face value with accrued interest, and direct
the distribution of the proceeds.
Sec. 2127.37. When If an action to sell real estate property
is prosecuted by an executor or administrator he, the executor or
administrator shall be allowed the compensation provided by law,
by the probate court from which his the executor's or
administrator's letters issued. When such If that action is by a
guardian, his the guardian's duties and obligations therein in the
action shall be considered by the court appointing him the
guardian in awarding such the compensation as that the court deems
considers reasonable.
Sec. 2127.38. The sale price of real estate property sold
following an action by an executor, administrator, or guardian
shall be applied and distributed as follows:
(A) To discharge the costs and expenses of the sale,
including reasonable fees to be fixed by the probate court for
services performed by attorneys for the fiduciary in connection
with the sale, and compensation, if any, to the fiduciary for his
services in connection with the sale as the court may fix, which
costs, expenses, fees, and compensation shall be paid prior to any
liens upon the real estate property sold and notwithstanding the
purchase of the real estate property by a lien holder;
(B) To the payment of taxes, interest, penalties, and
assessments then due against the real estate property, and to the
payment of mortgages and judgments against the ward or deceased
person, according to their respective priorities of lien, so far
as they operated as a lien on the real estate property of the
deceased at the time of the sale, or on the estate of the ward at
the time of the sale, which that shall be apportioned and
determined by the court, or on reference to a master, or
otherwise;
(C)(1) In the case of an executor or administrator, the remaining proceeds of sale shall be applied as follows:
(1)(a) To the payment of legacies with which the real estate
property of the deceased was charged, if the action is to sell
real estate property to pay legacies;
(2)(b) To discharge the claims and debts of the estate in the
order provided by law.
(2) Whether the executor or administrator was appointed in
this state or elsewhere, the surplus of the proceeds of sale must
shall be considered for all purposes as real estate property, and
be disposed of accordingly.
Sec. 2127.39. When If an action to sell real estate property
is brought by an executor or administrator with the will annexed,
if in the last will of the deceased there is a disposition of his
the decedent's estate for the payment of debts, or a provision
that may require or induce the probate court to marshal the assets
differently from the way the law otherwise would prescribe, such
those devises, or parts of the will, shall be set forth in the
complaint, and a copy of the will exhibited to the court,
whereupon the court shall marshal the proceeds of the sale
accordingly, so far as it can be done consistently with the rights
of creditors.
Sec. 2127.40. When an action is brought by an executor or
administrator to sell real estate property to pay debts, the real
estate property subject to sale shall include all rights and
interests in lands, tenements, and hereditaments real property
transferred by the decedent in his the decedent's lifetime with
intent to defraud his the decedent's creditors, except that lands
real property fraudulently transferred cannot be taken from any
person who purchased them for a valuable consideration, in good
faith, and without knowledge of the fraud. No claim to such lands
that real property shall be made unless within four years next
after the decease of the grantor.
If real estate property fraudulently transferred is to be
included in such an that action, the executor or administrator,
either before or at the same time, may commence a civil action in
the court of common pleas in the county in which the real estate
property is situated to recover possession of it, or, in his the
action for its sale,
he the executor or administrator may allege
the fraud and have the fraudulent transfer avoided. But when the
real estate property is included in the complaint before the
recovery of possession by the executor or administrator, the
action shall be brought in the court of common pleas in the county
in which the real estate property is situated.
Sec. 2127.41. If, after the institution of proceedings for
the partition of the real property of a decedent, it is found that
the assets in the hands possession or under the control of the
executor or administrator probably are insufficient to pay the
debts of the estate, together with the allowance for support of
the surviving spouse, minor children, or surviving spouse and
minor children as provided in section 2106.13 of the Revised Code,
the expenses of administration, and the legacies that are a charge
upon the real property, the executor or administrator shall make a
written statement to the probate court of the assets,
indebtedness, expenses, and legacies, and the court forthwith
shall ascertain the amount necessary to pay the debts, expenses,
and legacies and give a certificate of the amount to the executor
or administrator.
The executor or administrator then shall present the
certificate to the court in which the proceedings for partition
are or have been pending, and, on his the motion of the executor
or administrator, the court shall order the amount named in the
certificate to be paid over to the executor or administrator out
of the proceeds of the sale of the premises, if thereafter they
are sold or already have been sold. This section does not prohibit
an executor or administrator from proceeding to sell real property
belonging to the estate for the payment of debts or legacies,
although it has been sold on partition or otherwise, or the
proceeds of the sale have been fully distributed.
Sec. 2127.42. Wards living out of this state and owning
lands real property within it are entitled to the benefit of
sections 2127.01 to 2127.43 of the Revised Code. Complaints for
the sale of real estate property by guardians of such those wards
shall be filed in the county in which the land real property is
situated, or if situated in two or more counties, then in one of
the counties in which a part of it is situated. Additional
security shall be required from such the guardians, when deemed if
considered necessary by the probate court of the county in which
the complaints are filed.
Sec. 2127.43. Chapter 2127. of the Revised Code This chapter
extends to an action brought by the trustee of a nonresident minor
or mentally ill or deficient person to sell the real estate
property of the ward.
Sec. 2129.02. When If letters of administration or letters
testamentary have been granted in any state other than this state,
in any territory or possession of the United States, or in any
foreign country, as to the estate of a deceased resident of that
state, territory, possession, or country, and when if no ancillary
administration proceedings have been commenced in this state, the
person to whom the letters of appointment were granted may file an
authenticated copy of them in the probate court of any county of
this state in which is located real estate property of the
decedent.
The claim of any creditor of such a that decedent shall be
subject to section 2117.06 of the Revised Code. The person filing
such those letters in the probate court may accelerate the bar
against claims against the estate established by that section, by
giving written notice to a potential claimant that identifies the
decedent by name, states the date of the death of the decedent,
identifies the court, states its mailing address, and informs the
potential claimant that any claims he the potential claimant may
have against the estate are required to be presented to the court
within the earlier of thirty days after receipt of the notice by
the potential claimant or one year six months after the date of
the death of the decedent. A claim of that potential claimant that
is not presented to the court within the earlier of thirty days
after receipt of the notice by the potential claimant or one year
six months after the date of the death of the decedent is forever
barred as a possible lien upon the real
estate property of the
decedent in this state. If, at the expiration of that period, any
such claim has been filed and remains unpaid after reasonable
notice of the claim to the nonresident executor or administrator,
ancillary administration proceedings as to the estate may be had
forthwith.
Sec. 2129.05. 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
that property is situated. Such The 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 of the will or of the authenticated copy,
with the copy of the order to record it annexed thereto to that
copy, certified by the probate judge under the seal of his the
probate court, may be filed and recorded in the office of the
probate judge of any other county where a part of such the
property is situated, and it shall be as effectual as the
authenticated copy of such the will would be if approved and
admitted to record by the court.
Sec. 2129.08. (A) After an authenticated copy of the will of
a nonresident decedent has been allowed and admitted to record as
provided in this chapter, and after there has been filed in the
probate court a complete exemplification of the record of the
grant of the domiciliary letters of appointment and of any other
records of the court of domiciliary administration that the court
requires, the court shall appoint as the ancillary administrator
the person named in the will, or nominated in accordance with any
power of nomination conferred in the will, as general executor of
the decedent's estate or as executor of the portion of the
decedent's estate located in this state, provided that the person
makes application and qualifies under division (B)(2) of section
2109.21 of the Revised Code and in all other respects as required
by law. If the testator in the will naming or providing for the
nomination of that executor orders or requests that bond not be
given by him that executor, bond shall not be required unless, for
sufficient reason, the court requires it.
(B) If a nonresident decedent died intestate, or failed to
designate in his the nonresident decedent's will any person
qualified to act as ancillary administrator or to confer in the
will a power to nominate a person as an executor as described in
division (A) of this section, or if the will of a nonresident
decedent conferred such a that power but no person qualified to
act as ancillary administrator was nominated, the court shall
appoint in such that capacity some a suitable person who is a
resident of the county including, but not limited to, a creditor
of the estate.
(C) An ancillary administrator, acting as to the estate of a testate decedent that is located in this state, may sell and convey the real and personal property by virtue of the will as executors or administrators with the will annexed may do.
(D) No person shall be appointed as an ancillary administrator of the estate of a nonresident presumed decedent that is located in this state, except after Chapter 2121. of the Revised Code, relative to the appointment of an ancillary administrator, has been complied with.
Sec. 2129.11. If no domiciliary administration has been
commenced, the ancillary administrator shall proceed with the
administration in Ohio this state as though the decedent had been
a resident of Ohio this state at the time of his the decedent's
death.
Sec. 2129.13. If an ancillary administrator finds that the
personal property of the nonresident decedent in Ohio this state
is not sufficient to pay the expenses of administration, public
rates and taxes, and other valid claims which that have been
presented, he the ancillary administrator shall proceed to sell as
much of the real estate property of the decedent located in this
state as that is necessary to pay such those debts. The procedure
shall be the same as in sales of real estate property in
administration proceedings relating to the estates of resident
decedents under sections 2127.01 to 2127.43, inclusive, of the
Revised Code.
Sec. 2129.14. A domiciliary executor or administrator of a
nonresident decedent may file in the probate court by which the
ancillary administrator was appointed information showing that it
will be necessary to sell Ohio real
estate property of the
decedent located in this state to pay debts and legacies, and the
court may thereupon authorize the ancillary administrator to sell
such any part or all of such the real
estate as property that is
necessary. The ancillary administrator shall proceed to sell
such
the real estate property in the manner provided by section 2129.13
of the Revised Code.
Sec. 2129.15. Within five months after his appointment, the
ancillary administrator of a nonresident decedent shall forward to
the domiciliary administrator, if any, of such the decedent, if
the name and address of such the domiciliary administrator are
known, a certificate showing all assets of the estate in this
state and all debts and liabilities including estimated expenses
of administration. If the name and address of such the domiciliary
administrator are not known, such the certificate shall be
forwarded to the next of kin of the deceased whose names and
addresses are known and to the court having jurisdiction in estate
matters in the county in which the decedent resided at the time of
his death.
Sec. 2129.17. An ancillary administrator shall file in the
probate court of every county in Ohio this state in which real
estate property of the nonresident decedent is located a certified
copy of the records in the court of his the ancillary
administrator's appointment which that affect the title to such
that real estate property.
Sec. 2129.18. Whenever property of a nonresident decedent as
to whose estate ancillary administration proceedings are being had
in Ohio this state passes by the laws of intestate succession or
under a will to a beneficiary not named therein in the will,
proceedings may be had to determine the persons entitled to such
that property in the same manner as in the estates of resident
decedents under sections 2123.01 to 2123.07, inclusive, of the
Revised Code. The ancillary administrator shall file a certified
copy of such the finding in the probate court in every county in
Ohio this state in which real estate property of the decedent is
located. Such The administrator shall procure and file in the
court for the information of the court a certified copy of any
determination of heirship relative to such the decedent's estate
made in the state of the domiciliary administration.
Sec. 2129.19. Prior to filing his the ancillary
administrator's final account, an ancillary administrator shall
file in the probate court an application for a certificate of
transfer as to the real estate property of the nonresident
decedent situated in Ohio this state, in the same manner as in the
administration of the estates of resident decedents under section
2113.61 of the Revised Code.
Sec. 2129.23. When the expense of the ancillary
administration of a nonresident decedent's estate, including such
any attorney's fee as that is allowed by the probate court, all
public charges and taxes, and all claims of creditors presented as
provided in section 2129.12 of the Revised Code, have been paid,
any residue of the personal estate property and the proceeds of
any real estate property sold for the payment of debts shall be
distributed by the ancillary administrator as follows:
(A) With the approval of the court such, the residue may be
delivered to the domiciliary administrator or executor.
(B) If the court so orders, such the residue shall be
delivered to the persons entitled thereto to it.
Sec. 2129.25. When an executor or administrator is appointed
in any other state, territory, or foreign country for the estate
of a person dying out of this state, and no executor or
administrator thereon for the estate is appointed in this state,
the foreign executor or administrator may file an authenticated
copy of
his the foreign executor's or administrator's appointment
in the probate court of any county in which there is real
estate
property of the deceased, together with an authenticated copy of
the will. After filing such those copies, he the foreign executor
or administrator may be authorized, under an order of the court,
to sell real estate property for the payment of debts or legacies
and charges of administration, in the manner prescribed in
sections 2127.01 to 2127.43, inclusive, of the Revised Code.
Sec. 2129.26. When If it appears to the probate court
granting the order of sale set forth in section 2129.25 of the
Revised Code that the foreign executor or administrator is bound
with sufficient surety in the state or country in which
he the
foreign executor or administrator was appointed to account for the
proceeds of such the sale, for the payment of debts or legacies,
and for charges of administration, and an authenticated copy of
such the bond is filed in court, no further bond for that purpose
shall be required of him the foreign executor or administrator.
When If the court finds that such the bond is insufficient, before
making such the sale, such the foreign executor or administrator
must shall give bond to this state with two or more sufficient
sureties, conditioned to account for and dispose of such the
proceeds of the sale for the payment of the debts or legacies of
the deceased and the charges of administration according to the
laws of the state or country in which he the foreign executor or
administrator was appointed.
When such If the foreign executor or administrator is
authorized by order of the court to sell more than is necessary
for the payment of debts, legacies, and charges of administration,
before making the sale, he the foreign executor or administrator
shall give bond with two or more sufficient sureties to this
state, conditioned to account before the court for all the
proceeds of the sale that remain and to dispose of such the
proceeds after payment of such the debts, legacies, and charges.
Sec. 2129.28. If a trustee is named in a foreign will which
that creates a trust relating to lands real property situated in
this state, such the trustee may execute the trust upon giving
bond to the state in such the sum and with such the sureties as
that the probate court of the county in which such lands the real
property or a part thereof are of the real property is situated
approves, conditioned to discharge with fidelity the trust reposed
in
him the trustee. If the testator in the will naming the trustee
orders or requests that bond be not be given by him the trustee,
bond shall not be required, unless for sufficient cause the court
requires it.
Sec. 2129.29. If a trustee has been appointed under a
foreign will which that creates a trust relating to lands real
property situated in this state by a foreign court according to
the laws of the foreign jurisdiction, he the trustee may execute
the trust upon giving bond as provided in section 2129.28 of the
Revised Code, and after satisfying the probate court of the county
in which such lands the real property or a part of
them are it is
situated, by an authenticated record of his appointment, that
he
the person or entity has been appointed trustee to execute the
trust.
Sec. 2129.30. When If necessary, the probate court of the
county where the property affected by the trust is situated, on
application by petition of the parties interested, may appoint a
trustee to carry into effect a trust created by a foreign will.
Such The trustee, before entering upon his the trust, must shall
give bond with such the security and in such the amount as that
the court directs.
Sec. 2131.08. (A) Subject to sections 1746.14, 1747.09, and
2131.09 of the Revised Code, no interest in real or personal
property shall be good unless it must vest, if at all, not later
than twenty-one years after a life or lives in being at the
creation of the interest. All estates given in tail, by deed or
will, in lands or tenements real property lying within this state
shall be and remain an absolute estate in fee simple to the issue
of the first donee in tail. It is the intention by the adoption of
this section to make effective in this state what is generally
known as the common law rule against perpetuities, except as set
forth in divisions (B) and (C) of this section.
(B) For the purposes of this section and subject to sections 1746.14, 1747.09, and 2131.09 of the Revised Code, the time of the creation of an interest in real or personal property subject to a power reserved by the grantor to revoke or terminate the interest shall be the time at which the reserved power expires by reason of the death of the grantor, by release of the power, or otherwise.
(C) Any interest in real or personal property that would violate the rule against perpetuities, under division (A) of this section, shall be reformed, within the limits of the rule, to approximate most closely the intention of the creator of the interest. In determining whether an interest would violate the rule and in reforming an interest, the period of perpetuities shall be measured by actual rather than possible events.
(D) Divisions (B) and (C) of this section shall be effective with respect to interests in real or personal property created by wills of decedents dying after December 31, 1967, with respect to interests in real or personal property created by inter vivos instruments executed after December 31, 1967, and with respect to interests in real or personal property created by inter vivos instruments executed on or before December 31, 1967, that by reason of division (B) of this section will be treated as interests created after December 31, 1967. Divisions (B) and (C) of this section shall be effective with respect to interests in real or personal property created by the exercise of a power of appointment if divisions (B) and (C) of this section apply to the instrument that exercises the power, whether or not divisions (B) and (C) of this section apply to the instrument that creates the power.
Sec. 2131.11. When If an investment share certificate, share
account, deposit, or stock deposit is made, in any bank, building
and loan or savings and loan association, credit union, or society
for savings, payable to the owner during
his the owner's lifetime,
and to another on his the owner's death, such the investment share
certificate, share account, deposit, or stock deposit or, any part
thereof of that certificate, account, or deposit, or any interest
or dividend thereon on the certificate, account, or deposit, may
be paid to the owner during his the owner's lifetime, and on his
the owner's death such the investment share certificate, share
account, deposit, or stock deposit or, any part thereof of that
certificate, account, or deposit, or any interest or dividend
thereon on the certificate, account, or deposit, may be paid to
the designated beneficiary, and the receipt of acquittance of the
person paid is a sufficient release and discharge of the bank,
building and loan or savings and loan association, credit union,
or society for savings for any payment so made.
Sec. 2133.04. (A) A declarant may revoke a declaration at
any time and in any manner. The revocation shall be effective when
the declarant expresses his an intention to revoke the
declaration, except that, if the declarant made his the
declarant's attending physician aware of the declaration, the
revocation shall be effective upon its communication to the
attending physician of the declarant by the declarant himself, a
witness to the revocation, or other health care personnel to whom
the revocation is communicated by such a that witness. Absent
actual knowledge to the contrary, the attending physician of a
declarant and other health care personnel who are informed of the
revocation of a declaration by an alleged witness may rely on the
information and act in accordance with the revocation.
(B) Upon the communication as described in division (A) of
this section to the attending physician of a declarant of the fact
that his the declaration has been revoked, the attending physician
or other health care personnel acting under the direction of the
attending physician shall make the fact a part of the declarant's
medical record.
Sec. 2133.05. (A) If the attending physician of a declarant
and one other physician who examines the declarant determine that
he the declarant is in a terminal condition or in a permanently
unconscious state, whichever is addressed in the declaration, if
the attending physician additionally determines that the declarant
no longer is able to make informed decisions regarding the
administration of life-sustaining treatment for himself the
declarant and that there is no reasonable possibility that the
declarant will regain the capacity to make those informed
decisions for himself the declarant, and if the attending
physician is aware of the existence of the declarant's
declaration, then the attending physician shall do all of the
following:
(1) Record the determinations, together with the terms of the declaration or any copy of the declaration acquired as described in division (C) of section 2133.02 of the Revised Code, in the declarant's medical record;
(2)(a) Make a good faith effort, and use reasonable diligence, to notify either of the following of the determinations:
(i) If the declarant designated in his the declarant's
declaration one or more persons to be notified at any time that
life-sustaining treatment would be withheld or withdrawn pursuant
to the declaration, that person or those persons;
(ii) If division (A)(2)(a)(i) of this section is not
applicable, the appropriate individual or individuals, in
accordance with the following descending order of priority: if
any, the guardian of the declarant, but this division does not
permit or require, and shall not be construed as permitting or
requiring, the appointment of a guardian for the declarant; the
declarant's spouse; the declarant's adult children who are
available within a reasonable period of time for consultation with
the declarant's attending physician; the declarant's parents; or
an adult sibling of the declarant or, if there is more than one
adult sibling, a majority of the declarant's adult siblings who
are available within a reasonable period of time for
such the
consultation.
(b) The attending physician shall record in the declarant's medical record the names of the individual or individuals notified pursuant to division (A)(2)(a) of this section and the manner of notification.
(c) If, despite making a good faith effort, and despite using
reasonable diligence, to notify the appropriate individual or
individuals described in division (A)(2)(a) of this section, the
attending physician cannot notify the individual or individuals of
the determinations because the individual or individuals are
deceased, cannot be located, or cannot be notified for some other
reason, then the requirements of divisions (A)(2)(a) and (b) and
(3) of this section and, except as provided in division (B)(1)(b)
of this section, the provisions of division (B) of this section
shall not apply in connection with the declarant and his the
declarant's declaration. However, the attending physician shall
record in the declarant's medical record information pertaining to
the reason for the failure to provide the requisite notices and
information pertaining to the nature of the good faith effort and
reasonable diligence used.
(3) Afford time for the individual or individuals notified in accordance with division (A)(2) of this section to object in the manner described in division (B)(1)(a) of this section.
(B)(1)(a) Within forty-eight hours after receipt of a notice
pursuant to division (A)(2) of this section, any individual so
notified shall advise the attending physician of the declarant
whether he the individual objects on a basis specified in division
(B)(2)(c) of this section. If an objection as described in that
division is communicated to the attending physician, then, within
two business days after the communication, the individual shall
file a complaint as described in division (B)(2) of this section
in the probate court of the county in which the declarant is
located. If the individual fails to so file a complaint, his the
individual's objections as described in division (B)(2)(c) of this
section shall be considered to be void.
(b) Within forty-eight hours after a person described in
division (A)(2)(a)(i) of this section or a priority individual or
any member of a priority class of individuals described in
division (A)(2)(a)(ii) of this section receives a notice pursuant
to division (A)(2) of this section or within forty-eight hours
after information pertaining to an unnotified person described in
division (A)(2)(a)(i) of this section or an unnotified priority
individual or unnotified priority class of individuals described
in division (A)(2)(a)(ii) of this section is recorded in a
declarant's medical record pursuant to division (A)(2)(c) of this
section, either of the following shall advise the attending
physician of the declarant whether he or they object there is an
objection on a basis specified in division (B)(2)(c) of this
section:
(i) If a person described in division (A)(2)(a)(i) of this section was notified pursuant to division (A)(2) of this section or was the subject of a recordation under division (A)(2)(c) of this section, then the objection shall be communicated by the individual or a majority of the individuals in either of the first two classes of individuals that pertain to the declarant in the descending order of priority set forth in division (A)(2)(a)(ii) of this section.
(ii) If an individual or individuals in the descending order of priority set forth in division (A)(2)(a)(ii) of this section were notified pursuant to division (A)(2) of this section or were the subject of a recordation under division (A)(2)(c) of this section, then the objection shall be communicated by the individual or a majority of the individuals in the next class of individuals that pertains to the declarant in the descending order of priority set forth in division (A)(2)(a)(ii) of this section.
If an objection as described in division (B)(2)(c) of this
section is communicated to the attending physician in accordance
with division (B)(1)(b)(i) or (ii) of this section, then, within
two business days after the communication, the objecting
individual or majority shall file a complaint as described in
division (B)(2) of this section in the probate court of the county
in which the declarant is located. If the objecting individual or
majority fails to file a complaint, his or their
the objections as
described in division (B)(2)(c) of this section shall be
considered to be void.
(2) A complaint of an individual that is filed in accordance with division (B)(1)(a) of this section or of an individual or majority of individuals that is filed in accordance with division (B)(1)(b) of this section shall satisfy all of the following:
(a) Name any health care facility in which the declarant is confined;
(b) Name the declarant, his the declarant's attending
physician, and the consulting physician associated with the
determination that the declarant is in a terminal condition or in
a permanently unconscious state, whichever is addressed in the
declaration;
(c) Indicate whether the plaintiff or plaintiffs object on one or more of the following bases:
(i) To the attending physician's and consulting physician's determinations that the declarant is in a terminal condition or in a permanently unconscious state, whichever is addressed in the declaration;
(ii) To the attending physician's determination that the declarant no longer is able to make informed decisions regarding the administration of life-sustaining treatment;
(iii) To the attending physician's determination that there is no reasonable possibility that the declarant will regain the capacity to make informed decisions regarding the administration of life-sustaining treatment;
(iv) That the course of action proposed to be undertaken by the attending physician is not authorized by the declarant's declaration;
(v) That the declaration was executed when the declarant was not of sound mind or was under or subject to duress, fraud, or undue influence;
(vi) That the declaration otherwise does not substantially comply with this chapter.
(d) Request the probate court to issue one of the following types of orders:
(i) An order to the attending physician to reevaluate, in light of the court proceedings, the determination that the declarant is in a terminal condition or in a permanently unconscious state, whichever is addressed in the declaration, the determination that the declarant no longer is able to make informed decisions regarding the administration of life-sustaining treatment, the determination that there is no reasonable possibility that the declarant will regain the capacity to make those informed decisions, or the course of action proposed to be undertaken;
(ii) An order invalidating the declaration because it was executed when the declarant was not of sound mind or was under or subject to duress, fraud, or undue influence, or because it otherwise does not substantially comply with this chapter;
(e) Be accompanied by an affidavit of the plaintiff or
plaintiffs that includes averments relative to whether he the
plaintiff is an individual or they the plaintiffs are individuals
as described in division (A)(2)(a)(i) or (ii) of this section and
to the factual basis for
his the plaintiff's or their the
plaintiffs' objections;
(f) Name any individuals who were notified by the attending physician in accordance with division (A)(2)(a) of this section and who are not joining in the complaint as plaintiffs;
(g) Name, in the caption of the complaint, as defendants the attending physician of the declarant, the consulting physician associated with the determination that the declarant is in a terminal condition or in a permanently unconscious state, whichever is addressed in the declaration, any health care facility in which the declarant is confined, and any individuals who were notified by the attending physician in accordance with division (A)(2)(a) of this section and who are not joining in the complaint as plaintiffs.
(3) Notwithstanding any contrary provision of the Revised Code or of the Rules of Civil Procedure, the state and persons other than an objecting individual as described in division (B)(1)(a) of this section, other than an objecting individual or majority of individuals as described in division (B)(2)(b)(i) or (ii) of this section, and other than persons described in division (B)(2)(g) of this section are prohibited from commencing a civil action under this section and from joining or being joined as parties to an action commenced under this section, including joining by way of intervention.
(4)(a) A probate court in which a complaint as described in
division (B)(2) of this section is filed within the period
specified in division (B)(1)(a) or (b) of this section shall
conduct a hearing on the complaint after a copy of the complaint
and a notice of the hearing have been served upon the defendants.
The clerk of the probate court in which the complaint is filed
shall cause the complaint and the notice of the hearing to be so
served in accordance with the Rules of Civil Procedure, which
service shall be made, if possible, within three days after the
filing of the complaint. The hearing shall be conducted at the
earliest possible time, but no later than the third business day
after such the service has been completed. Immediately following
the hearing, the court shall enter on its journal its
determination whether a requested order will be issued.
(b) If the declarant's declaration authorized the use or
continuation of life-sustaining treatment should he the declarant
be in a terminal condition or in a permanently unconscious state
and if the plaintiff or plaintiffs requested a reevaluation order
to the attending physician of the declarant as described in
division (B)(2)(d)(i) of this section, the court shall issue the
reevaluation order only if it finds that the plaintiff or
plaintiffs have established a factual basis for the objection or
objections involved by clear and convincing evidence, to a
reasonable degree of medical certainty, and in accordance with
reasonable medical standards.
(c) If the declarant's declaration authorized the withholding
or withdrawal of life-sustaining treatment should he the declarant
be in a terminal condition or in a permanently unconscious state
and if the plaintiff or plaintiffs requested a reevaluation order
to the attending physician of the declarant as described in
division (B)(2)(d)(i) of this section, the court shall issue the
reevaluation order only if it finds that the plaintiff or
plaintiffs have established a factual basis for the objection or
objections involved by a preponderance of the evidence, to a
reasonable degree of medical certainty, and in accordance with
reasonable medical standards.
(d) If the plaintiff or plaintiffs requested an invalidation order as described in division (B)(2)(d)(ii) of this section, the court shall issue the order only if it finds that the plaintiff or plaintiffs have established a factual basis for the objection or objections involved by clear and convincing evidence.
(e) If the court issues a reevaluation order to the
declarant's attending physician pursuant to division (B)(4)(b) or
(c) of this section, then the attending physician shall make the
requisite reevaluation. If, after doing so, the attending
physician again determines that the declarant is in a terminal
condition or in a permanently unconscious state, that the
declarant no longer is able to make informed decisions regarding
the administration of life-sustaining treatment, that there is no
reasonable possibility that the declarant will regain the capacity
to make those informed decisions, or that he the attending
physician would undertake the same proposed course of action, then
he the attending physician shall notify the court in writing of
the determination and comply with the provisions of section
2133.10 of the Revised Code.
Sec. 2133.06. (A) As long as a qualified patient is able to
make informed decisions regarding the administration of
life-sustaining treatment, he
the qualified patient may continue
to do so.
(B) Life-sustaining treatment shall not be withheld or
withdrawn from a declarant pursuant to a declaration if she the
declarant is pregnant and if the withholding or withdrawal of the
treatment would terminate the pregnancy, unless the declarant's
attending physician and one other physician who has examined the
declarant determine, to a reasonable degree of medical certainty
and in accordance with reasonable medical standards, that the
fetus would not be born alive.
Sec. 2133.08. (A)(1) If written consent to the withholding
or withdrawal of life-sustaining treatment, witnessed by two
individuals who satisfy the witness eligibility criteria set forth
in division (B)(1) of section 2133.02 of the Revised Code, is
given by the appropriate individual or individuals as specified in
division (B) of this section to the attending physician of a
patient who is an adult, and if all of the following apply in
connection with the patient, then, subject to section 2133.09 of
the Revised Code, his the patient's attending physician may
withhold or withdraw the life-sustaining treatment:
(a) The attending physician and one other physician who examines the patient determine, in good faith, to a reasonable degree of medical certainty, and in accordance with reasonable medical standards, that the patient is in a terminal condition or the patient currently is and for at least the immediately preceding twelve months has been in a permanently unconscious state, and the attending physician additionally determines, in good faith, to a reasonable degree of medical certainty, and in accordance with reasonable medical standards, that the patient no longer is able to make informed decisions regarding the administration of life-sustaining treatment and that there is no reasonable possibility that the patient will regain the capacity to make those informed decisions.
(b) The patient does not have a declaration that addresses
his the patient's intent should he the patient be determined to be
in a terminal condition or in a permanently unconscious state,
whichever applies, or a durable power of attorney for health care,
or has a document that purports to be such a declaration or
durable power of attorney for health care but that document is not
legally effective.
(c) The consent of the appropriate individual or individuals is given after consultation with the patient's attending physician and after receipt of information from the patient's attending physician or a consulting physician that is sufficient to satisfy the requirements of informed consent.
(d) The appropriate individual or individuals who give a consent are of sound mind and voluntarily give the consent.
(e) If a consent would be given under division (B)(3) of this section, the attending physician made a good faith effort, and used reasonable diligence, to notify the patient's adult children who are available within a reasonable period of time for consultation as described in division (A)(1)(c) of this section.
(2) The consulting physician under division (A)(1)(a) of this section associated with a patient allegedly in a permanently unconscious state shall be a physician who, by virtue of advanced education or training, of a practice limited to particular diseases, illnesses, injuries, therapies, or branches of medicine or surgery or osteopathic medicine and surgery, of certification as a specialist in a particular branch of medicine or surgery or osteopathic medicine and surgery, or of experience acquired in the practice of medicine or surgery or osteopathic medicine and surgery, is qualified to determine whether the patient currently is and for at least the immediately preceding twelve months has been in a permanently unconscious state.
(B) For purposes of division (A) of this section, a consent to withhold or withdraw life-sustaining treatment may be given by the appropriate individual or individuals, in accordance with the following descending order of priority:
(1) If any, the guardian of the patient. This division does not permit or require, and shall not be construed as permitting or requiring, the appointment of a guardian for the patient.
(2) The patient's spouse;
(3) An adult child of the patient or, if there is more than one adult child, a majority of the patient's adult children who are available within a reasonable period of time for consultation with the patient's attending physician;
(4) The patient's parents;
(5) An adult sibling of the patient or, if there is more than
one adult sibling, a majority of the patient's adult siblings who
are available within a reasonable period of time for
such that
consultation;
(6) The nearest adult who is not described in divisions
(B)(1) to (5) of this section, who is related to the patient by
blood or adoption, and who is available within a reasonable period
of time for such that consultation.
(C) If an appropriate individual or class of individuals
entitled to decide under division (B) of this section whether or
not to consent to the withholding or withdrawal of life-sustaining
treatment for a patient is not available within a reasonable
period of time for such the consultation and competent to so
decide, or declines to so decide, then the next priority
individual or class of individuals specified in that division is
authorized to make the decision. However, an equal division in a
priority class of individuals under that division does not
authorize the next class of individuals specified in that division
to make the decision. If an equal division in a priority class of
individuals under that division occurs, no written consent to the
withholding or withdrawal of life-sustaining treatment from the
patient can be given pursuant to this section.
(D)(1) A decision to consent pursuant to this section to the use or continuation, or the withholding or withdrawal, of life-sustaining treatment for a patient shall be made in good faith.
(2) Except as provided in division (D)(4) of this section, if
the patient previously expressed his an intention with respect to
the use or continuation, or the withholding or withdrawal, of
life-sustaining treatment should he the patient subsequently be in
a terminal condition or in a permanently unconscious state,
whichever applies, and no longer able to make informed decisions
regarding the administration of life-sustaining treatment, a
consent given pursuant to this section shall be valid only if it
is consistent with that previously expressed intention.
(3) Except as provided in division (D)(4) of this section, if
the patient did not previously express his an intention with
respect to the use or continuation, or the withholding or
withdrawal, of life-sustaining treatment should he the patient
subsequently be in a terminal condition or in a permanently
unconscious state, whichever applies, and no longer able to make
informed decisions regarding the administration of life-sustaining
treatment, a consent given pursuant to this section shall be valid
only if it is consistent with the type of informed consent
decision that the patient would have made if he the patient
previously had expressed his an intention with respect to the use
or continuation, or the withholding or withdrawal, of
life-sustaining treatment should he
the patient subsequently be in
a terminal condition or in a permanently unconscious state,
whichever applies, and no longer able to make informed decisions
regarding the administration of life-sustaining treatment, as
inferred from the lifestyle and character of the patient, and from
any other evidence of the desires of the patient, prior to his the
patient's becoming no longer able to make informed decisions
regarding the administration of life-sustaining treatment. The
Rules of Evidence shall not be binding for purposes of this
division.
(4)(a) The attending physician of the patient, and other health care personnel acting under the direction of the attending physician, who do not have actual knowledge of a previously expressed intention as described in division (D)(2) of this section or who do not have actual knowledge that the patient would have made a different type of informed consent decision under the circumstances described in division (D)(3) of this section, may rely on a consent given in accordance with this section unless a probate court decides differently under division (E) of this section.
(b) The immunity conferred by division (C)(1) of section 2133.11 of the Revised Code is not forfeited by an individual who gives a consent to the use or continuation, or the withholding or withdrawal, of life-sustaining treatment for a patient under division (B) of this section if the individual gives the consent in good faith and without actual knowledge, at the time of giving the consent, of either a contrary previously expressed intention of the patient, or a previously expressed intention of the patient, as described in division (D)(2) of this section, that is revealed to the individual subsequent to the time of giving the consent.
(E)(1) Within forty-eight hours after a priority individual
or class of individuals gives a consent pursuant to this section
to the use or continuation, or the withholding or withdrawal, of
life-sustaining treatment and communicates the consent to the
patient's attending physician, any individual described in
divisions (B)(1) to (5) of this section who objects to the
application of this section to the patient shall advise the
attending physician of the grounds for the objection. If an
objection is so communicated to the attending physician, then,
within two business days after that communication, the objecting
individual shall file a complaint against the priority individual
or class of individuals, the patient's attending physician, and
the consulting physician associated with the determination that
the patient is in a terminal condition or that the patient
currently is and for at least the immediately preceding twelve
months has been in a permanently unconscious state, in the probate
court of the county in which the patient is located for the
issuance of an order reversing the consent of the priority
individual or class of individuals. If the objecting individual
fails to so file a complaint, his the individual's objections
shall be considered to be void.
A probate court in which a complaint is filed in accordance
with this division shall conduct a hearing on the complaint after
a copy of the complaint and a notice of the hearing have been
served upon the defendants. The clerk of the probate court in
which the complaint is filed shall cause the complaint and the
notice of the hearing to be so served in accordance with the Rules
of Civil Procedure, which service shall be made, if possible,
within three days after the filing of the complaint. The hearing
shall be conducted at the earliest possible time, but no later
than the third business day after such the service has been
completed. Immediately following the hearing, the court shall
enter on its journal its determination whether the decision of the
priority individual or class of individuals to consent to the use
or continuation, or the withholding or withdrawal, of
life-sustaining treatment in connection with the patient will be
confirmed or reversed.
(2) If the decision of the priority individual or class of individuals was to consent to the use or continuation of life-sustaining treatment in connection with the patient, the court only may reverse that consent if the objecting individual establishes, by clear and convincing evidence and, if applicable, to a reasonable degree of medical certainty and in accordance with reasonable medical standards, one or more of the following:
(a) The patient is able to make informed decisions regarding the administration of life-sustaining treatment.
(b) The patient has a legally effective declaration that
addresses his the patient's intent should he the patient be
determined to be in a terminal condition or in a permanently
unconscious state, whichever applies, or a legally effective
durable power of attorney for health care.
(c) The decision to use or continue life-sustaining treatment is not consistent with the previously expressed intention of the patient as described in division (D)(2) of this section.
(d) The decision to use or continue life-sustaining treatment
is not consistent with the type of informed consent decision that
the patient would have made if he the patient previously had
expressed his an intention with respect to the use or
continuation, or the withholding or withdrawal, of life-sustaining
treatment should he the patient subsequently be in a terminal
condition or in a permanently unconscious state, whichever
applies, and no longer able to make informed decisions regarding
the administration of life-sustaining treatment as described in
division (D)(3) of this section.
(e) The decision of the priority individual or class of individuals was not made after consultation with the patient's attending physician and after receipt of information from the patient's attending physician or a consulting physician that is sufficient to satisfy the requirements of informed consent.
(f) The priority individual, or any member of the priority class of individuals, who made the decision to use or continue life-sustaining treatment was not of sound mind or did not voluntarily make the decision.
(g) If the decision of a priority class of individuals under division (B)(3) of this section is involved, the patient's attending physician did not make a good faith effort, and use reasonable diligence, to notify the patient's adult children who were available within a reasonable period of time for consultation as described in division (A)(1)(c) of this section.
(h) The decision of the priority individual or class of individuals otherwise was made in a manner that does not comply with this section.
(3) If the decision of the priority individual or class of individuals was to consent to the withholding or withdrawal of life-sustaining treatment in connection with the patient, the court only may reverse that consent if the objecting individual establishes, by a preponderance of the evidence and, if applicable, to a reasonable degree of medical certainty and in accordance with reasonable medical standards, one or more of the following:
(a) The patient is not in a terminal condition, the patient is not in a permanently unconscious state, or the patient has not been in a permanently unconscious state for at least the immediately preceding twelve months.
(b) The patient is able to make informed decisions regarding the administration of life-sustaining treatment.
(c) There is a reasonable possibility that the patient will regain the capacity to make informed decisions regarding the administration of life-sustaining treatment.
(d) The patient has a legally effective declaration that
addresses his the patient's intent should he the patient be
determined to be in a terminal condition or in a permanently
unconscious state, whichever applies, or a legally effective
durable power of attorney for health care.
(e) The decision to withhold or withdraw life-sustaining treatment is not consistent with the previously expressed intention of the patient as described in division (D)(2) of this section.
(f) The decision to withhold or withdraw life-sustaining
treatment is not consistent with the type of informed consent
decision that the patient would have made if he the patient
previously had expressed his an intention with respect to the use
or continuation, or the withholding or withdrawal, of
life-sustaining treatment should he the patient subsequently be in
a terminal condition or in a permanently unconscious state,
whichever applies, and no longer able to make informed decisions
regarding the administration of life-sustaining treatment as
described in division (D)(3) of this section.
(g) The decision of the priority individual or class of individuals was not made after consultation with the patient's attending physician and after receipt of information from the patient's attending physician or a consulting physician that is sufficient to satisfy the requirements of informed consent.
(h) The priority individual, or any member of the priority class of individuals, who made the decision to withhold or withdraw life-sustaining treatment was not of sound mind or did not voluntarily make the decision.
(i) If the decision of a priority class of individuals under division (B)(3) of this section is involved, the patient's attending physician did not make a good faith effort, and use reasonable diligence, to notify the patient's adult children who were available within a reasonable period of time for consultation as described in division (A)(1)(c) of this section.
(j) The decision of the priority individual or class of individuals otherwise was made in a manner that does not comply with this section.
(4) Notwithstanding any contrary provision of the Revised Code or of the Rules of Civil Procedure, the state and persons other than individuals described in divisions (B)(1) to (5) of this section are prohibited from filing a complaint under division (E) of this section and from joining or being joined as parties to a hearing conducted under division (E) of this section, including joining by way of intervention.
(F) A valid consent given in accordance with this section
supersedes any general consent to treatment form signed by or on
behalf of the patient prior to, upon, or after his the patient's
admission to a health care facility to the extent there is a
conflict between the consent and the form.
(G) Life-sustaining treatment shall not be withheld or
withdrawn from a patient pursuant to a consent given in accordance
with this section if she the patient is pregnant and if the
withholding or withdrawal of the treatment would terminate the
pregnancy, unless the patient's attending physician and one other
physician who has examined the patient determine, to a reasonable
degree of medical certainty and in accordance with reasonable
medical standards, that the fetus would not be born alive.
Sec. 2133.09. (A) The attending physician of a patient who is an adult and who currently is and for at least the immediately preceding twelve months has been in a permanently unconscious state may withhold or withdraw nutrition and hydration in connection with the patient only if all of the following apply:
(1) Written consent to the withholding or withdrawal of life-sustaining treatment in connection with the patient has been given by an appropriate individual or individuals in accordance with section 2133.08 of the Revised Code, and divisions (A)(1)(a) to (e) and (2) of that section have been satisfied.
(2) A probate court has not reversed the consent to the withholding or withdrawal of life-sustaining treatment in connection with the patient pursuant to division (E) of section 2133.08 of the Revised Code.
(3) The attending physician of the patient and one other physician as described in division (A)(2) of section 2133.08 of the Revised Code who examines the patient determine, in good faith, to a reasonable degree of medical certainty, and in accordance with reasonable medical standards, that nutrition and hydration will not or no longer will provide comfort or alleviate pain in connection with the patient.
(4) Written consent to the withholding or withdrawal of nutrition and hydration in connection with the patient, witnessed by two individuals who satisfy the witness eligibility criteria set forth in division (B)(1) of section 2133.02 of the Revised Code, is given to the attending physician of the patient by an appropriate individual or individuals as specified in division (B) of section 2133.08 of the Revised Code.
(5) The written consent to the withholding or withdrawal of the nutrition and hydration in connection with the patient is given in accordance with division (B) of this section.
(6) The probate court of the county in which the patient is located issues an order to withhold or withdraw the nutrition and hydration in connection with the patient pursuant to division (C) of this section.
(B)(1) A decision to consent pursuant to this section to the withholding or withdrawal of nutrition and hydration in connection with a patient shall be made in good faith.
(2) Except as provided in division (B)(4) of this section, if
the patient previously expressed his an intention with respect to
the use or continuation, or the withholding or withdrawal, of
nutrition and hydration should he the patient subsequently be in a
permanently unconscious state and no longer able to make informed
decisions regarding the administration of nutrition and hydration,
a consent given pursuant to this section shall be valid only if it
is consistent with that previously expressed intention.
(3) Except as provided in division (B)(4) of this section, if
the patient did not previously express his an intention with
respect to the use or continuation, or the withholding or
withdrawal, of nutrition and hyrdation hydration should he
the
patient subsequently be in a permanently unconscious state and no
longer able to make informed decisions regarding the
administration of nutrition and hydration, a consent given
pursuant to this section shall be valid only if it is consistent
with the type of informed consent decision that the patient would
have made if he the patient previously had expressed his an
intention with respect to the use or continuation, or the
withholding or withdrawal, of nutrition and hydration should he
the patient subsequently be in a permanently unconscious state and
no longer able to make informed decisions regarding the
administration of nutrition and hydration, as inferred from the
lifestyle and character of the patient, and from any other
evidence of the desires of the patient, prior to his the patient's
becoming no longer able to make informed decisions regarding the
administration of nutrition and hydration. The Rules of Evidence
shall not be binding for purposes of this division.
(4)(a) The attending physician of the patient, and other health care personnel acting under the direction of the attending physician, who do not have actual knowledge of a previously expressed intention as described in division (B)(2) of this section or who do not have actual knowledge that the patient would have made a different type of informed consent decision under the circumstances described in division (B)(3) of this section, may rely on a consent given in accordance with this section unless a probate court decides differently under division (C) of this section.
(b) The immunity conferred by division (C)(2) of section
2133.11 of the Revised Code is not forfeited by an individual who
gives a consent to the withholding or withdrawal of nutrition and
hydration in connection with a patient under division (A)(4) of
this section if the individual gives the consent in good faith and
without actual knowledge, at the time of giving the consent, of
either a contrary previously expressed intention of the patient,
or a previously expressed intention of the patient, as described
in divison division (B)(2) of this section, that is revealed to
the individual subsequent to the time of giving the consent.
(C)(1) Prior to the withholding or withdrawal of nutrition
and hydration in connection with a patient pursuant to this
section, the priority individual or class of individuals that
consented to the withholding or withdrawal of the nutrition and
hydration shall apply to the probate court of the county in which
the patient is located for the issuance of an order that
authorizes the attending physician of the patient to commence the
withholding or withdrawal of the nutrition and hydration in
connection with the patient. Upon the filing of the application,
the clerk of the probate court shall schedule a hearing on it and
cause a copy of it and a notice of the hearing to be served in
accordance with the Rules of Civil Procedure upon the applicant,
the attending physician, the consulting physician associated with
the determination that nutrition and hydration will not or no
longer will provide comfort or alleviate pain in connection with
the patient, and the individuals described in divisions (B)(1) to
(5) of section 2133.08 of the Revised Code who are not applicants,
which service shall be made, if possible, within three days after
the filing of the application. The hearing shall be conducted at
the earliest possible time, but no sooner than the thirtieth
business day, and no later than the sixtieth business day, after
such the service has been completed.
At the hearing, any individual described in divisions (B)(1) to (5) of section 2133.08 of the Revised Code who is not an applicant and who disagrees with the decision of the priority individual or class of individuals to consent to the withholding or withdrawal of nutrition and hydration in connection with the patient shall be permitted to testify and present evidence relative to the use or continuation of nutrition and hydration in connection with the patient. Immediately following the hearing, the court shall enter on its journal its determination whether the requested order will be issued.
(2) The court shall issue an order that authorizes the patient's attending physician to commence the withholding or withdrawal of nutrition and hydration in connection with the patient only if the applicants establish, by clear and convincing evidence, to a reasonable degree of medical certainty, and in accordance with reasonable medical standards, all of the following:
(a) The patient currently is and for at least the immediately preceding twelve months has been in a permanently unconscious state.
(b) The patient no longer is able to make informed decisions regarding the administration of life-sustaining treatment.
(c) There is no reasonable possibility that the patient will regain the capacity to make informed decisions regarding the administration of life-sustaining treatment.
(d) The conditions specified in divisions (A)(1) to (4) of this section have been satisfied.
(e) The decision to withhold or withdraw nutrition and
hydration in connection with the patient is consistent with the
previously expressed intention of the patient as described in
division (B)(2) of this section or is consistent with the type of
informed consent decision that the patient would have made if he
the patient previously had expressed his an intention with respect
to the use or continuation, or the withholding or withdrawal, of
nutrition and hydration should he the patient subsequently be in a
permanently unconscious state and no longer able to make informed
decisions regarding the administration of nutrition and hydration
as described in division (B)(3) of this section.
(3) Notwithstanding any contrary provision of the Revised Code or of the Rules of Civil Procedure, the state and persons other than individuals described in division (A)(4) of this section or in divisions (B)(1) to (5) of section 2133.08 of the Revised Code and other than the attending physician and consulting physician associated with the determination that nutrition and hydration will not or no longer will provide comfort or alleviate pain in connection with the patient are prohibited from filing an application under this division and from joining or being joined as parties to a hearing conducted under this division, including joining by way of intervention.
(D) A valid consent given in accordance with this section
supersedes any general consent to treatment form signed by or on
behalf of the patient prior to, upon, or after his the patient's
admission to a health care facility to the extent there is a
conflict between the consent and the form.
Sec. 2151.13. The juvenile judge may appoint such bailiffs,
probation officers, and other employees as are necessary and may
designate their titles and fix their duties, compensation, and
expense allowances. The juvenile court may by entry on its journal
authorize any deputy clerk to administer oaths when necessary in
the discharge of his the deputy clerk's duties. Such employees
shall serve during the pleasure of the judge.
The compensation and expenses of all employees and the salary and expenses of the judge shall be paid in semimonthly installments by the county treasurer from the money appropriated for the operation of the court, upon the warrant of the county auditor, certified to by the judge.
The judge may require any employee to give bond in the sum of
not less than one thousand dollars, conditioned for the honest and
faithful performance of his the employee's duties. The sureties on
such bonds shall be approved in the manner provided by section
2151.12 of the Revised Code. The judge shall not be personally
liable for the default, misfeasance, or nonfeasance of any
employee from whom a bond has been required.
Sec. 2335.34. On the first Monday of January, each year, the
clerk of each court of common pleas and court of appeals, each
probate judge, and each sheriff shall make two certified lists of
causes in which money has been paid and has remained in the hands
of such that person or in the hands of a former clerk, probate
judge, or sheriff, for one year next preceding such that first
Monday of January. Such The lists shall designate the amount of
money and in whose hands it remains. One list shall be set up in a
conspicuous place by
such the officer, in his the officer's
office, for the period of thirty days, and the other list shall be
posted at or on the door a public area of the courthouse or
published on the web site of the court or officer, on the second
Monday of January, for the same period of time.
Sec. 3101.02. Any consent required under section 3101.01 of
the Revised Code shall be personally given before the probate
judge or a deputy clerk of the probate court, or certified under
the hand of the person consenting, by two witnesses, one of whom
must shall appear before the judge and make oath that
he the
witness saw the person whose name is annexed to the certificate
subscribe it, or heard
him the person consenting acknowledge it.
Sec. 3101.03. If the parent or guardian of a minor is a
nonresident of, or is absent from, the county in which the
marriage license is applied for,
he the parent or guardian
personally may appear before the official upon whose authority
marriage licenses are issued, in the county in which he the parent
or guardian is at the time domiciled, and give his consent in
writing to such that marriage. The consent must shall be attested
to by two witnesses, certified to by such that official, and
forwarded to the probate judge of the county in which the license
is applied for. The probate judge may administer any oath
required, issue and sign such the license, and affix the seal of
the probate court.
Sec. 3101.10. A minister upon producing to the secretary of
state, credentials of his the minister's being a regularly
ordained or licensed minister of any religious society or
congregation, shall be entitled to receive from the secretary of
state a license authorizing him the minister to solemnize
marriages in this state so long as he the minister continues as a
regular minister in such that society or congregation. A minister
shall produce for inspection his the minister's license to
solemnize marriages upon demand of any party to a marriage at
which he
the minister officiates or proposes to officiate or upon
demand of any probate judge.
Sec. 3101.13. Except as otherwise provided in this section,
a certificate of every marriage solemnized shall be transmitted by
the authorized person solemnizing the marriage, within thirty days
after the solemnization, to the probate judge of the county in
which the marriage license was issued. If, in accordance with
section 2101.27 of the Revised Code, a probate judge solemnizes a
marriage and if the probate judge issued the marriage license to
the husband and wife, he the probate judge shall file a
certificate of that solemnized marriage in his the probate judge's
office within thirty days after the solemnization. All such of the
transmitted and filed certificates shall be consecutively numbered
and recorded in the order in which they are received.
Sec. 3101.14. Every marriage license shall have printed upon
it in prominent type the notice that, unless the person
solemnizing the marriage returns a certificate of the solemnized
marriage to the probate court that issued the marriage license
within thirty days after performing the ceremony, or, if the
person solemnizing the marriage is a probate judge who is acting
in accordance with section 2101.27 of the Revised Code and who
issued the marriage license to the husband and wife, unless such a
that probate judge files a certificate of the solemnized marriage
in
his the probate judge's office within thirty days after the
solemnization, he the person or probate judge is guilty of a minor
misdemeanor and, upon conviction, may be punished by a fine of
fifty dollars. An envelope suitable for returning the certificate
of marriage, and addressed to the proper probate court, shall be
given with each license, except that this requirement does not
apply if a marriage is to be solemnized by a probate judge who is
acting in accordance with section 2101.27 of the Revised Code and
who issued the marriage license to the husband and wife.
Sec. 3313.85. If the board of education of any city,
exempted village, or local school district or the governing board
of any educational service center fails to perform the duties
imposed upon it or fails to fill a vacancy in such that board
within a period of thirty days after
such the vacancy occurs, the
probate court of the county in which such the district or service
center is located, upon being advised and satisfied of such that
failure, shall act as such that board and perform all duties
imposed upon such board to fill any vacancy as promptly as
possible.
Sec. 5111.113. (A) As used in this section:
(1) "Adult care facility" has the same meaning as in section 5119.70 of the Revised Code.
(2) "Commissioner" means a person appointed by a probate
court under division (B)(E) of section 2113.03 of the Revised Code
to act as a commissioner.
(3) "Home" has the same meaning as in section 3721.10 of the Revised Code.
(4) "Personal needs allowance account" means an account or petty cash fund that holds the money of a resident of an adult care facility or home and that the facility or home manages for the resident.
(B) Except as provided in divisions (C) and (D) of this section, the owner or operator of an adult care facility or home shall transfer to the department of job and family services the money in the personal needs allowance account of a resident of the facility or home who was a recipient of the medical assistance program no earlier than sixty days but not later than ninety days after the resident dies. The adult care facility or home shall transfer the money even though the owner or operator of the facility or home has not been issued letters testamentary or letters of administration concerning the resident's estate.
(C) If funeral or burial expenses for a resident of an adult care facility or home who has died have not been paid and the only resource the resident had that could be used to pay for the expenses is the money in the resident's personal needs allowance account, or all other resources of the resident are inadequate to pay the full cost of the expenses, the money in the resident's personal needs allowance account shall be used to pay for the expenses rather than being transferred to the department of job and family services pursuant to division (B) of this section.
(D) If, not later than sixty days after a resident of an adult care facility or home dies, letters testamentary or letters of administration are issued, or an application for release from administration is filed under section 2113.03 of the Revised Code, concerning the resident's estate, the owner or operator of the facility or home shall transfer the money in the resident's personal needs allowance account to the administrator, executor, commissioner, or person who filed the application for release from administration.
(E) The transfer or use of money in a resident's personal needs allowance account in accordance with division (B), (C), or (D) of this section discharges and releases the adult care facility or home, and the owner or operator of the facility or home, from any claim for the money from any source.
(F) If, sixty-one or more days after a resident of an adult care facility or home dies, letters testamentary or letters of administration are issued, or an application for release from administration under section 2113.03 of the Revised Code is filed, concerning the resident's estate, the department of job and family services shall transfer the funds to the administrator, executor, commissioner, or person who filed the application, unless the department is entitled to recover the money under the medicaid estate recovery program instituted under section 5111.11 of the Revised Code.
SECTION 2. That existing sections 2101.01, 2101.02, 2101.021, 2101.03, 2101.04, 2101.06, 2101.07, 2101.08, 2101.09, 2101.10, 2101.11, 2101.13, 2101.15, 2101.16, 2101.162, 2101.19, 2101.20, 2101.22, 2101.23, 2101.24, 2101.27, 2101.30, 2101.34, 2101.37, 2101.38, 2101.41, 2101.43, 2103.01, 2105.051, 2105.06, 2105.10, 2105.11, 2105.13, 2105.14, 2105.15, 2105.16, 2105.19, 2106.01, 2106.08, 2106.11, 2107.01, 2107.02, 2107.03, 2107.04, 2107.05, 2107.07, 2107.08, 2107.081, 2107.082, 2107.083, 2107.084, 2107.085, 2107.09, 2107.10, 2107.11, 2107.15, 2107.17, 2107.18, 2107.20, 2107.21, 2107.22, 2107.29, 2107.32, 2107.34, 2107.35, 2107.36, 2107.38, 2107.46, 2107.47, 2107.49, 2107.50, 2107.501, 2107.51, 2107.52, 2107.53, 2107.54, 2107.55, 2107.56, 2107.58, 2107.59, 2107.60, 2107.61, 2107.65, 2107.71, 2107.73, 2107.75, 2108.51, 2109.02, 2109.021, 2109.03, 2109.04, 2109.05, 2109.06, 2109.07, 2109.09, 2109.10, 2109.11, 2109.12, 2109.14, 2109.17, 2109.19, 2109.20, 2109.21, 2109.22, 2109.24, 2109.25, 2109.26, 2109.302, 2109.303, 2109.32, 2109.33, 2109.34, 2109.35, 2109.36, 2109.361, 2109.37, 2109.371, 2109.372, 2109.38, 2109.39, 2109.40, 2109.42, 2109.43, 2109.44, 2109.45, 2109.46, 2109.47, 2109.48, 2109.49, 2109.50, 2109.51, 2109.52, 2109.53, 2109.54, 2109.55, 2109.56, 2109.57, 2109.58, 2109.59, 2109.60, 2109.61, 2109.62, 2111.02, 2111.021, 2111.031, 2111.04, 2111.041, 2111.06, 2111.07, 2111.09, 2111.091, 2111.12, 2111.131, 2111.14, 2111.141, 2111.16, 2111.17, 2111.181, 2111.19, 2111.20, 2111.21, 2111.22, 2111.25, 2111.26, 2111.27, 2111.28, 2111.29, 2111.30, 2111.31, 2111.33, 2111.34, 2111.35, 2111.36, 2111.37, 2111.38, 2111.39, 2111.40, 2111.41, 2111.44, 2111.46, 2111.48, 2111.50, 2113.01, 2113.03, 2113.04, 2113.05, 2113.06, 2113.07, 2113.12, 2113.13, 2113.14, 2113.15, 2113.16, 2113.18, 2113.19, 2113.20, 2113.21, 2113.22, 2113.25, 2113.30, 2113.31, 2113.311, 2113.33, 2113.34, 2113.35, 2113.36, 2113.39, 2113.40, 2113.41, 2113.45, 2113.46, 2113.48, 2113.49, 2113.50, 2113.51, 2113.52, 2113.54, 2113.58, 2113.61, 2113.62, 2113.67, 2113.68, 2113.69, 2113.70, 2113.72, 2113.73, 2113.74, 2113.75, 2113.81, 2113.82, 2113.85, 2113.86, 2113.87, 2113.88, 2115.02, 2115.03, 2115.06, 2115.09, 2115.10, 2115.11, 2115.12, 2115.16, 2115.17, 2117.01, 2117.02, 2117.03, 2117.04, 2117.061, 2117.08, 2117.09, 2117.10, 2117.13, 2117.15, 2117.17, 2117.18, 2117.30, 2117.31, 2117.34, 2117.35, 2117.36, 2117.37, 2117.41, 2117.42, 2119.01, 2119.02, 2119.03, 2119.04, 2119.05, 2121.01, 2121.02, 2121.05, 2121.06, 2121.08, 2121.09, 2123.02, 2123.03, 2123.05, 2123.06, 2127.011, 2127.02, 2127.04, 2127.05, 2127.06, 2127.07, 2127.08, 2127.09, 2127.10, 2127.11, 2127.12, 2127.13, 2127.14, 2127.15, 2127.16, 2127.17, 2127.18, 2127.19, 2127.21, 2127.22, 2127.23, 2127.24, 2127.27, 2127.28, 2127.29, 2127.30, 2127.32, 2127.33, 2127.34, 2127.35, 2127.36, 2127.37, 2127.38, 2127.39, 2127.40, 2127.41, 2127.42, 2127.43, 2129.02, 2129.05, 2129.08, 2129.11, 2129.13, 2129.14, 2129.15, 2129.17, 2129.18, 2129.19, 2129.23, 2129.25, 2129.26, 2129.28, 2129.29, 2129.30, 2131.08, 2131.11, 2133.04, 2133.05, 2133.06, 2133.08, 2133.09, 2151.13, 2335.34, 3101.02, 3101.03, 3101.10, 3101.13, 3101.14, 3313.85, and 5111.113 and sections 2101.36, 2113.02, 2113.17, 2113.24, 2113.26, 2113.27, 2113.28, 2113.29, 2113.57, and 2113.63 of the Revised Code are hereby repealed.
SECTION 3. The provisions of this act that relate to the estates of decedents apply to the estates of decedents who die on or after the effective date of this act.
SECTION 4. The General Assembly, applying the principle stated in division (B) of section 1.52 of the Revised Code that amendments are to be harmonized if reasonably capable of simultaneous operation, finds that the following sections, presented in this act as composites of the sections as amended by the acts indicated, are the resulting versions of the sections in effect prior to the effective date of the sections as presented in this act:
Section 2101.24 of the Revised Code as amended by both Sub. H.B. 416 and Sub. H.B. 426 of the 126th General Assembly.
Section 2109.44 of the Revised Code as amended by both Am. Sub. H.B. 538 and Sub. S.B. 129 of the 121st General Assembly.