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S. B. No. 106 As IntroducedAs Introduced
128th General Assembly | Regular Session | 2009-2010 |
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Senators Buehrer, Kearney
Cosponsors:
Senators Miller, R., Schuler, Seitz, Turner
A BILL
To amend sections 2101.16, 2107.76, 2111.05, 2111.18,
2305.19, and 5815.31 of the Revised Code to
exclude from the application of the savings
statute certain estate and trust proceedings that
have limitation periods, to raise the threshold
amount for the termination or avoidance of
guardianships of small estates of wards, to raise
the threshold amount for the avoidance of
guardianship upon the settlement of claims of
minors or adult incompetents, and to clarify that
termination of marriage revokes any trust
provision conferring a beneficial interest on the
former spouse.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2101.16, 2107.76, 2111.05, 2111.18,
2305.19, and 5815.31 of the Revised Code be amended to read as
follows:
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) |
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Account, in addition to advertising charges |
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$ |
12.00 |
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Waivers and proof of notice of hearing on account, per page, minimum one dollar |
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$ |
1.00 |
(2) |
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Account of distribution, in addition to advertising charges |
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$ |
7.00 |
(3) |
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Adoption of child, petition for |
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$ |
50.00 |
(4) |
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Alter or cancel contract for sale or purchase of real estate, petition to |
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$ |
20.00 |
(5) |
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Application and order not otherwise provided for in this section or by rule adopted pursuant to division (E) of this section |
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$ |
5.00 |
(6) |
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Appropriation suit, per day, hearing in |
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$ |
20.00 |
(7) |
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Birth, application for registration of |
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$ |
7.00 |
(8) |
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Birth record, application to correct |
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$ |
5.00 |
(9) |
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Bond, application for new or additional |
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$ |
5.00 |
(10) |
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Bond, application for release of surety or reduction of |
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$ |
5.00 |
(11) |
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Bond, receipt for securities deposited in lieu of |
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$ |
5.00 |
(12) |
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Certified copy of journal entry, record, or proceeding, per page, minimum fee one dollar |
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$ |
1.00 |
(13) |
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Citation and issuing citation, application for |
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$ |
5.00 |
(14) |
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Change of name, petition for |
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$ |
20.00 |
(15) |
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Claim, application of administrator or executor for allowance of administrator's or executor's own |
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$ |
10.00 |
(16) |
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Claim, application to compromise or settle |
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$ |
10.00 |
(17) |
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Claim, authority to present |
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$ |
10.00 |
(18) |
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Commissioner, appointment of |
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$ |
5.00 |
(19) |
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Compensation for extraordinary services and attorney's fees for fiduciary, application for |
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$ |
5.00 |
(20) |
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Competency, application to procure adjudication of |
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$ |
20.00 |
(21) |
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Complete contract, application to |
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$ |
10.00 |
(22) |
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Concealment of assets, citation for |
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$ |
10.00 |
(23) |
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Construction of will, petition for |
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$ |
20.00 |
(24) |
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Continue decedent's business, application to |
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$ |
10.00 |
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Monthly reports of operation |
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$ |
5.00 |
(25) |
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Declaratory judgment, petition for |
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$ |
20.00 |
(26) |
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Deposit of will |
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$ |
5.00 |
(27) |
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Designation of heir |
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$ |
20.00 |
(28) |
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Distribution in kind, application, assent, and order for |
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$ |
5.00 |
(29) |
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Distribution under section 2109.36 of the Revised Code, application for an order of |
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$ |
7.00 |
(30) |
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Docketing and indexing proceedings, including the filing and noting of all necessary documents, maximum fee, fifteen dollars |
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$ |
15.00 |
(31) |
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Exceptions to any proceeding named in this section, contest of appointment or |
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$ |
10.00 |
(32) |
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Election of surviving partner to purchase assets of partnership, proceedings relating to |
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$ |
10.00 |
(33) |
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Election of surviving spouse under will |
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$ |
5.00 |
(34) |
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Fiduciary, including an assignee or trustee of an insolvent debtor or any guardian or conservator accountable to the probate court, appointment of |
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$ |
35.00 |
(35) |
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Foreign will, application to record |
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$ |
10.00 |
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Record of foreign will, additional, per page |
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$ |
1.00 |
(36) |
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Forms when supplied by the probate court, not to exceed |
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$ |
10.00 |
(37) |
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Heirship, petition to determine |
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$ |
20.00 |
(38) |
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Injunction proceedings |
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$ |
20.00 |
(39) |
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Improve real estate, petition to |
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$ |
20.00 |
(40) |
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Inventory with appraisement |
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$ |
10.00 |
(41) |
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Inventory without appraisement |
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$ |
7.00 |
(42) |
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Investment or expenditure of funds, application for |
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$ |
10.00 |
(43) |
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Invest in real estate, application to |
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$ |
10.00 |
(44) |
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Lease for oil, gas, coal, or other mineral, petition to |
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$ |
20.00 |
(45) |
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Lease or lease and improve real estate, petition to |
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$ |
20.00 |
(46) |
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Marriage license |
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$ |
10.00 |
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Certified abstract of each marriage |
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$ |
2.00 |
(47) |
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Minor or mentally ill incompetent person, etc., disposal of estate under ten twenty-five thousand dollars of |
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$ |
10.00 |
(48) |
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Mortgage or mortgage and repair or improve real estate, petition to |
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$ |
20.00 |
(49) |
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Newly discovered assets, report of |
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$ |
7.00 |
(50) |
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Nonresident executor or administrator to bar creditors' claims, proceedings by |
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$ |
20.00 |
(51) |
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Power of attorney or revocation of power, bonding company |
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$ |
10.00 |
(52) |
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Presumption of death, petition to establish |
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$ |
20.00 |
(53) |
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Probating will |
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$ |
15.00 |
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Proof of notice to beneficiaries |
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$ |
5.00 |
(54) |
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Purchase personal property, application of surviving spouse to |
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$ |
10.00 |
(55) |
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Purchase real estate at appraised value, petition of surviving spouse to |
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$ |
20.00 |
(56) |
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Receipts in addition to advertising charges, application and order to record |
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$ |
5.00 |
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Record of those receipts, additional, per page |
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$ |
1.00 |
(57) |
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Record in excess of fifteen hundred words in any proceeding in the probate court, per page |
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$ |
1.00 |
(58) |
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Release of estate by mortgagee or other lienholder |
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$ |
5.00 |
(59) |
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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 |
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$ |
60.00 |
(60) |
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Removal of fiduciary, application for |
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$ |
10.00 |
(61) |
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Requalification of executor or administrator |
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$ |
10.00 |
(62) |
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Resignation of fiduciary |
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$ |
5.00 |
(63) |
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Sale bill, public sale of personal property |
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$ |
10.00 |
(64) |
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Sale of personal property and report, application for |
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$ |
10.00 |
(65) |
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Sale of real estate, petition for |
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$ |
25.00 |
(66) |
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Terminate guardianship, petition to |
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$ |
10.00 |
(67) |
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Transfer of real estate, application, entry, and certificate for |
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$ |
7.00 |
(68) |
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Unclaimed money, application to invest |
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$ |
7.00 |
(69) |
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Vacate approval of account or order of distribution, motion to |
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$ |
10.00 |
(70) |
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Writ of execution |
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$ |
5.00 |
(71) |
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Writ of possession |
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$ |
5.00 |
(72) |
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Wrongful death, application and settlement of claim for |
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$ |
20.00 |
(73) |
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Year's allowance, petition to review |
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$ |
7.00 |
(74) |
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Guardian's report, filing and review of |
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$ |
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
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. 2107.76. (A) No person
who has received or waived the
right
to receive
the
notice of the admission of a will to probate
required by section 2107.19 of
the Revised Code may commence an
action permitted by section 2107.71 of
the
Revised Code to contest
the validity of the will more than
three months
after
the
filing
of
the certificate described in division (A)(3)
of section
2107.19
of
the Revised Code. No other person may commence an action
permitted by section 2107.71 of the Revised Code to contest the
validity of the will more than three months after the initial
filing of a certificate described in division (A)(3) of section
2107.19 of the Revised Code.
A person under any
legal disability
nevertheless may commence an action permitted by
section
2107.71
of the Revised Code to contest the validity of the
will within
three months after the disability is removed, but the
rights
saved
shall not affect
the rights of a purchaser, lessee,
or
encumbrancer for value in good faith and
shall not impose any
liability upon a fiduciary who has acted in good faith,
or upon a
person delivering or transferring property to any other person
under
authority of a will, whether or not the purchaser, lessee,
encumbrancer,
fiduciary, or other person had actual or
constructive notice of the legal
disability.
(B) Section 2305.19 of the Revised Code does not apply to an
action permitted by section 2107.71 of the Revised Code to contest
the validity of a will.
Sec. 2111.05. When the whole estate of a ward, or of
several
wards jointly, under the same guardianship, does not
exceed ten
twenty-five thousand dollars in value, the guardian may apply to
the probate court for an order to terminate the guardianship.
Upon
proof that it would be for the best interest of the ward to
terminate the guardianship, the court may order the guardianship
terminated, and direct the guardian, if the ward is a minor, to
deposit the assets of the guardianship in a depository authorized
to receive fiduciary funds, payable to the ward when he the ward
attains
majority, or the court may authorize the delivery of the
assets
to the natural guardian of the minor, to the person by whom
the
minor is maintained, to the executive director of children
services in the county, or to the minor himself minor's own
self.
If the ward is an incompetent, and the court orders the
guardianship terminated, the court may authorize the deposit of
the assets of the guardianship in a depository authorized to
receive fiduciary funds in the name of a suitable person to be
designated by the court, or if the assets do not consist of
money,
the court may authorize delivery to a suitable person to
be
designated by the court. The person receiving the assets
shall
hold and dispose of them in the manner the court directs.
If the court refuses to grant the application to terminate
the guardianship, or if no such application is presented to the
court, the guardian only shall be required to render account upon
the termination of his the guardianship, upon order of the
probate
court made upon its own motion, or upon the order of the court
made on the motion of a person interested in the wards or their
property, for good cause shown, and set forth upon the journal of
the court.
If the estate is ten twenty-five thousand dollars or less and
the ward
is a minor, the court, without the appointment of a
guardian by
the court, or the giving of bond, may authorize the
deposit in a
depository authorized to receive fiduciary funds,
payable to the
guardian when appointed, or to the ward when he the
ward attains
majority,
or the court may authorize delivery to the
natural guardian of
the minor, to the person by whom the minor is
maintained, to the
executive director who is responsible for the
administration of
children services in the county, or to the minor
himself minor's own
self.
If the whole estate of a person over eighteen years of age,
who has been adjudged mentally ill or mentally retarded
incompetent, does not
exceed ten twenty-five thousand dollars in
value, the court, without the
appointment of a guardian by the
court or the giving of bond, may
authorize the deposit of the
estate in a depository authorized to
receive fiduciary funds in
the name of a suitable person to be
designated by the court, or if
the assets do not consist of
money, the court may authorize
delivery to a suitable person to
be designated by the court. The
person receiving the assets
shall hold and dispose of them in the
manner the court directs.
Sec. 2111.18. 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
ward by wrongful act, neglect, or default that would entitle
the
ward to maintain an action and recover damages for the
injury,
damage, or loss, and when any ward 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 guardian of the estate of the ward
may adjust
and settle the claim with the advice, approval, and
consent of the
probate court. In the settlement, if the ward is
a minor, the
parent or parents may waive all claim for damages on
account of
loss of service of the minor, and that claim may be
included in
the settlement. However, when If it is proposed that
the a claim
involved be settled for ten the net amount of twenty-five thousand
dollars or less after payment of fees and expenses as allowed by
the court,
the court, upon application by any suitable person whom
the court may
authorize to receive and receipt for the settlement,
may
authorize the settlement without the appointment of a guardian
and authorize the delivery of the moneys to the natural guardian
of the minor, to the person by whom the minor is maintained, or
to
the minor himself as provided in section 2111.05 of the Revised
Code. The court may authorize
the minor or
person receiving the
moneys to execute a complete release on
account of the receipt.
The payment shall be a complete and
final discharge of any such
that claim. In the settlement, if the ward is a minor, the parent
or parents of the minor may waive all claim for damages on account
of loss of service of the minor, and that claim may be included in
the settlement.
Sec. 2305.19. (A) In any action that is commenced or
attempted to be commenced, if in due
time a judgment for the
plaintiff is reversed or if the plaintiff fails
otherwise than
upon the merits, the plaintiff or,
if the plaintiff dies and the
cause of action survives,
the plaintiff's representative may
commence
a new action within one year after the date of the
reversal of the judgment or the plaintiff's failure otherwise than
upon the merits or within the period of the original applicable
statute of limitations, whichever occurs later. This division
applies to any
claim asserted in any pleading by a defendant.
(B) If the defendant in an action described in division (A)
of this section is a foreign or domestic
corporation, and whether
its charter prescribes the
manner or place of service of process
on the defendant, and if it passes into
the hands of a receiver
before the expiration of the one year period or the period of the
original applicable statute of limitations, whichever is
applicable, as described in that division, then service to be
made
within one year following the original service or attempt to begin
the
action may be made upon that receiver or the receiver's
cashier, treasurer, secretary,
clerk, or managing agent, or if
none of these officers can be found, by a copy
left at the office
or the usual place of business of any of those agents or officers
of the receiver with the person having charge of the office or
place of business. If that corporation is
a railroad company,
summons may be served on any regular ticket or freight
agent of
the receiver, and if there is no regular ticket or freight agent
of the receiver, then upon any conductor
of the receiver, in any
county in the state in which the railroad is located.
The summons
shall be returned as if served on that defendant corporation.
(C) This section does not apply to an action or proceeding
arising under section 2106.22, 2107.76, 2109.35, 2115.16, 5806.04,
or 5810.05 of the Revised Code.
Sec. 5815.31. Unless the trust or separation agreement
provides otherwise, if, after executing a trust in which the
grantor
reserves to self a power to alter, amend, revoke, or
terminate
the provisions of the trust, a grantor is divorced,
obtains a
dissolution of marriage, has the grantor's marriage
annulled, or, upon
actual separation from the grantor's spouse,
enters into a
separation
agreement pursuant to which the parties
intend to fully and
finally settle their prospective property
rights in the property
of the other, whether by expected
inheritance or otherwise, the
spouse or former spouse of the
grantor shall be deemed to have
predeceased the grantor, and any
provision in the trust conferring
any beneficial interest or a
general or special power of appointment on the spouse or former
spouse or nominating the spouse or former spouse as trustee or
trust advisor shall be revoked. If the grantor remarries the
grantor's
former spouse or if the separation agreement is
terminated, the
spouse shall not be deemed to have predeceased the
grantor, and
any provision in the trust conferring any beneficial
interest or a general or special power
of appointment on the
spouse or former spouse or nominating the
spouse or former spouse
as trustee or trust advisor shall not be
revoked.
Section 2. That existing sections 2101.16, 2107.76, 2111.05,
2111.18, 2305.19, and 5815.31 of the Revised Code are hereby
repealed.
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