Recent Probate Legislation
124th General Assembly (2001 - 2002) |
These summaries are listed for information purposes only and should not be read as the law. Anyone interested in the subject matter of these summaries may review the enacted statutes. |
| Substitute HB 84 - Prohibit Public Officials From Receiving PERS & Salary Simultaneously for the Same Office |
| Effective date: 07/31/01 |
SUMMARY - Prohibits an elected official from receiving a PERS pension while earning a salary for the same public office. An exception to the prohibition applies if: 1) the elected official files a written declaration of intent to retire with the board of elections at least 90 days prior to the general election for the election official's current term of office; 2) a PERS retirant had been retired for not less than 90 days at the time of the general election; 3) a PERS retirant appointee notified the person/entity making the appointment that the retirant was already retired or intended to retire before the end of the term. AMENDS: 145.38, 3305.08 & Sec. 6 of SB 144 in the 123rd G.A. |
| Substitute HB 85 - Probate Reform |
Effective date: 10/31/01 |
SUMMARY - The intent of HB 85 is to reform Ohio Probate statutes to allow decedent's estate to be closed within six (6) months if the estate is not required to file an Ohio Estate Tax return. Changes the spousal election to exercise rights under RC 2106. The Probate Court shall issue citation to all surviving spouses explaining rights and elections pursuant to Chapter 2106. (Includes election against will) Unless otherwise provided by statute, the surviving spouse must exercise rights not later than five (5) months from the date of the initial appointment of an administrator/executor. The certificate of giving Notice of the Admission of the Will to Probate shall be filed not later than two (2) months after appointment of the fiduciary. A citation may be issued for failing to file the Certificate of Notice of Probate of Will. Shortens the time to file a Will Contest to three (3) months from the filing of the Certificate of Notice of Probate of Will. Enacts separate accounting statutes for 1) estates, 2) guardianships, and 3) testamentary trusts and other fiduciaries. Executors and Administrators would not be required to exhibit vouchers with their accounts unless required by local court rules. Guardians and Trustees are still required to exhibit vouchers. In an estate, the Final and Distributive Account shall be filed within six (6) months after appointment unless an estate tax is required or other circumstances enumerated in the statute apply, otherwise the estate fiduciary must render an accounting within thirteen (13) months of appointment and every year following. Guardians, Testamentary Trustees and other Fiduciaries' account law would remain unchanged from current law. Amends the Creditor's rights statutes if a valid claim was filed after distribution, the beneficiaries would be liable only in an amount equal to their proportionate share of the entire estate. Allows an alleged father, along with the mother and the adult child, to appear before the probate court and jointly file a declaration stating the man is the father of the adult child. The probate court shall issue an order declaring the man to be the adult child's father if: the other was freely and voluntarily requested; no person is designated as the father on the birth certificate of the adult child; genetic test results show the man is the father of the adult child; it is in the best interests of the man and the adult child. The order will also change the child's birth certificate to designate the man as the father of the adult child. AMENDS: See BILL |
| Substitute HB 157 - PERS Cost of Living increase to 3% |
Effective date: 02/01/02 |
SUMMARY - Provides that the annual cost of living increase paid to retired members and beneficiaries will be three percent. (Current law is the lesser of 3% or increase in Consumer Price Index) Establishes that a surviving spouse of a deceased Ohio police and fire pension fund member/contributor, whose monthly pension was terminated due to remarriage, shall continue to receive a monthly pension. AMENDS: 145.297, 145.323, 742.37, 742.3711, 742.3716, 742.3717, 742.3718, 742.63, 3307.67, 3309.374, 5505.174 |
Substitute HB 178 - Supplemental Services Trusts |
Effective date: 10/26/01 |
SUMMARY - Allows the creation of non-testamentary trusts that provide funding for supplemental services for the benefit of physically or mentally disabled persons. (Former law provided for testamentary supplemental services trusts) Prohibits the termination or revocation of such a trust without payment of a certain amount into the Services Fund for Individuals with Mental Illness or the Services Fund for Individuals with Mental Retardation and Developmental Disabilities once trust funds are disbursed on behalf of the beneficiary. AMENDS: 1339.51, 5111.15, 5121.04 |
HB 233 - Attorney Fees from Declaratory Action in Estates and Trusts |
Effective date: 01/25/02 |
SUMMARY - Excludes from the general prohibition against awarding attorney fees in declaratory relief claims, an award of attorney fees to a fiduciary, beneficiary or other party to be paid out of the estate/trust property that is involved in that proceeding for declaratory relief. The attorney fees shall be paid regardless of whether the claim for the declaratory relief is granted. The attorney fees are awarded in accordance with equitable principles that permit recovery of attorney's fees incurred for services that are beneficial to the trust or estate. Introduced to correct legislation enacted 09/24/99, (Sub. HB 58) which prohibited a court from awarding attorney fees in declaratory judgment actions without explicit statutory authorization. AMENDS: 2721.16 |
Substitute HB 242 - Uniform Simultaneous Death Act |
Effective date: 05/16/02 |
SUMMARY - This Bill enacts the Uniform Simultaneous Death Act, and repeals RC 2105.21 regarding Presumption of Order of Death. A person who is not established by clear and convincing evidence to have survived another specified person by 120 hours is deemed to have predeceased the other person. Applies the survivorship requirement to non-probate assets such as survivorship title to real or personal property. Also applies to the elective share of an intestate estate; elective interest in the mansion house; elective interest in allowance for support. This section does not apply if its application would result in escheat to the state. The same survival requirements would apply for 1) purposes of a provision of a governing instrument that relates to surviving an event with certain exceptions, 2) co-ownership in real or personal property. Certain exceptions include if the governing instrument contains explicit language dealing with simultaneous death or the instrument expressly indicates that a person is not required to survive an event by any specified period in order for any right to vest or transfer. Describes requirement for presumption of death. Provides liability protection for 3rd party transfers done in good faith. Applies sections 2105.31 to 2105.39 to any governing instrument that is executed, or any multi-party account that is opened, prior to January 1, 2002. Does not apply to any act done in any proceeding, or any right that accrued, before January 1, 2002, under any provision of the Revised Code, the provision of the applicable section of the Revised Code applies with respect to that right. AMENDS: 2105.02, 2105.04, 2105.07, 2105.08, 2106.04, 2107.34, 2121.02, and 2121.06 |
Substitute HB 279 - Real Property Transactions; Attestation Not Required |
Effective date: 02/01/02 |
SUMMARY - Eliminates the attestation requirement for deeds, mortgages, land contracts, leases and memoranda of leases of real property, memoranda of trust, certain power of attorney, and other recordable instruments and transactions pertaining to real property. Documents executed prior to this amendment are deemed properly executed absent fraud; no substantive or vested rights are affected by this amendment. Persons acknowledging deeds, mortgages, and other recordable instruments and transactions pertaining to real property shall be subject to perjury penalties under R.C. 2921.11. Supplemented by HB 470. AMENDS: See BILL |
| Substitute HB 345 - Omnibus Probate Revisions |
Effective date: 07/23/02 with the exception of Uniform Simultaneous Death Act portions which take effect 05/16/02. |
SUMMARY - Changes the valuation limit for the termination of a trust from $50,000 to $100,000. Enacts a transfer on death provision on a certificate of title for motor vehicles, watercraft, or other vehicles with outboard motors. Under Internal Revenue Code §2140, if trustee has the ability to make distributions to himself or his creditors, or the power to remove a trustee, the corpus of the trust may be subject to estate tax in the trustee's estate as a power of appointment. Revised Code §1340.22 eliminates this risk by prohibiting distributions by the trustee to himself or his creditors. The statute has a number of exceptions in it to allow for distributions when the power has no estate tax consequences. H.B. 345 clarifies some issues as to who can be appointed as successor trustee without running afoul of the statute, as well as a number of additional exceptions to the statute to allow for distribution powers, which have no adverse estate tax consequences. The bill also allows for the beneficiaries to "opt out" of the statute in some cases. For testamentary trusts, the election for "opting out" is filed in the probate court where the will is admitted to probate. Defines the term "Decedent's Business" and extends the time for which an Executor or Administrator may continue the decedent's business from one (1) month to four (4) months. Specifies that an application for certificate of transfer of real property may be filed after the filing of an estate inventory, but prior to filing of the final account. The Court shall issue the certificate of transfer within five (5) days of filing the application. Allows a person paying a creditor's claim under R.C. 2117.25 to be subrogated to the rights of that creditor proportionate to the amount paid and shall be entitled to reimbursement for that amount in accordance with the priority of claims in that section. Disallows a person under the age of 18 from witnessing a will executed pursuant to R.C. 2107.03 or an agreement to make a will pursuant to R.C. 2107.04. Specifically requires notice of the application for lost, spoliated or destroyed wills be given to all persons entitled to inherit under 2105 if the testator died intestate, to all legatees and devisees that are named in the most recent will prior to the lost, spoliated, or destroyed will. Provides that the proponents and opponents of the will, not the Court, shall cause the witnesses to the will and any other relevant and material witnesses to testify. The Probate Court shall find and establish the contents of the will if the requirement of R.C. 2107.26 are met; this language replaces specific factors previously stated in R.C. 2107.27. Enacts a two-year statute of limitations for actions relating to revocable trusts that are made irrevocable by the death of the grantor. Requires insurance companies to pay interest on proceeds that become due to the terms of a policy of sickness and accident insurance due to the death of the insured by sickness or accident. Repeals R.C. 2105.39 of the Uniform Simultaneous Death Act as enacted by Am. Sub. HB 242 of 124th General Assembly. AMENDS: See BILL |
HB 355 - Inmate Commitments |
Effective date: 07/23/02 |
SUMMARY - Allows the Department of Rehabilitation and Correction to transfer an inmate to a psychiatric hospital under an "emergency transfer order" if the chief clinical officer of mental health services or designee, and a psychiatrist employed or retained by the department or a psychologist employed or retained by the department determines that the inmate is mentally ill; presents a danger to self or others; and requires hospital-level care. After an "emergency transfer," the department shall hold a hearing for (thirty (30)) days continued hospitalization within five (5) working days after admission. The department shall hold a subsequent hearing not later than ninety (90) days after the first thirty-day (30) hearing, and then not later than each one hundred eighty (180) days after the immediately prior hearing. The inmate may execute a written waiver of any hearing if the inmate has the capacity to make a reasoned choice. The Department of Rehabilitation and Correction may also transfer an inmate to a psychiatric hospital under an "uncontested transfer order" if 1) a psychiatrist determines the inmate has mental illness; 2) requiring hospital care, and 3) the inmate has the mental capacity to make a reasoned choice and agrees to the transfer order. After the "uncontested transfer", the inmate may withdraw consent and be discharged. The department shall hold a hearing for (thirty (30) days)) continued hospitalization within five (5) working days after admission. The department shall hold a subsequent hearing not later than ninety (90) days after the first thirty-day (30) hearing, and then not later than each one hundred eighty (180) days after the immediately prior hearing. The inmate may execute a written waiver of any hearing if the inmate has the capacity to make a reasoned choice. Written notice and hearing for the consideration of a proposed transfer of an inmate pursuant to this section, as provided by a warden or warden's designee, is not required for an "emergency transfer" or an "uncontested transfer". Replaces "warden or warden's designee" with "medical director or attending physician" as the persons able to discharge an inmate to an available and appropriate less restrictive state correctional institution or unit. Allows the warden of the psychiatric hospital to file an affidavit pursuant to section 5122.11 or 5123.71 in the probate court for the county where the inmate "will reside" upon expiration of an inmate's prison term. Eliminates the probate court's ability to grant a continuance at the request of the inmate patient or the inmate patient's counsel for initial hearings pursuant to section 5122.141, or probable cause hearings pursuant to section 5123.75. AMENDS: 5120.17 |
Amended Substitute HB 405 - MR/DD Services & Budget Corrections |
| Effective date: 12/13/01 |
SUMMARY - Current law requires the probate judge to appoint two of the seven members of each county's MR/DD board. Provides that at least one probate court appointee be a relative of a person eligible for residential services or supported living. Eliminates the requirement that the probate court appointee be related by blood or marriage to the person eligible for the MR/DD services, and provides that the member may be a spouse, parent, parent in law, sibling, sibling in law, child, child in law, grandparent, aunt or uncle. Increases the number of consecutive terms a member may serve to three, full, consecutive terms to two years. A member who has served for ten years or less within three consecutive terms may be re-appointed to a subsequent term. Provides numerous changes in the authority and responsibilities of the Director of Ohio Department of Mental Retardation and Developmental Disabilities (ODMR/DD) in relation to funding and oversight of county MR/DD boards. Also makes several corrective measures to the state budget. This bill included an income tax on the taxable income of trusts for two years beginning in 2002 and 2003. The conference committee eliminated the trust income tax provisions. AMENDS: See BILL |
| HB 470 - Modifies Statutory Real Estate Forms |
| Effective date: 01/31/02 |
SUMMARY - Modifies the statutory forms to comply with HB 279, which eliminated the requirement of attestation. Statutory forms included: general warranty deed; limited warranty deed; deed of executor, administrator, trustee, guardian, receiver, or commissioner; quit-claim deed; mortgage; survivorship deed; and transfer on death deed. AMENDS: 5302.05, 5302.07, 5302.09, 5302.11, 5302.12, 5302.17, and 5302.22 |
| HB 509 - Trust Company Purchases |
| Effective date: 03/14/03 |
SUMMARY - Allows a trust company to purchase products or services through or from a trust company or an affiliate or from a syndicate or selling group that includes the trust company or an affiliate provided that the purchase is otherwise prudent under sections 1339.52 to 1339.61, the compensation for the service or product is reasonable, and the purchase is disclosed at least annually. ENACTS: 1111.15 |
| Substitute HB 510 - Department of Rehabilitation and Corrections |
| Effective date: 03/23/03 |
SUMMARY - Allows a probate court to grant a marriage license upon application and oath of only one marriage license applicant so long as the other applicant cannot appear by reason of the other party's confinement in a state correctional institution. The confined applicant must make an affidavit setting forth the information required of applicants for a marriage license, which is filed in the probate court at the time of applying for the marriage license. Note: This Bill was amended to remove this Marriage provision from the current version of HB 510. AMENDS: Several non-probate statutes. |
| Substitute HB 474 - Assisted Suicide; Compassionate Care Task Force |
| Effective date: 03/23/03 |
SUMMARY - Declares that assisted suicide is against the public policy of the state. Creates the Compassionate Care Task Force to study and make recommendations on the treatment of intractable pain. Allows a guardian, spouse, parent, child, sibling, a person entitled to inherit, or a person who has inherited to seek injunctive relief enjoining any action related to assisting suicide. Allows a cause of action against any person who assists or attempts to assist a suicide. AMENDS: 4723.28, 4730.25, 4731.22, 4761.09 |
| Substitute HB 522 - Uniform Principal and Income Act |
| Effective date: 12/23/02 |
SUMMARY - Adopts the Uniform Principal and Income Act of 1997 regarding apportionment and distribution of income to trust beneficiaries, a fiduciary's allocation of receipts and disbursements to or between principal and income. Specifies the extent of a trustee's liability with respect to authorized adjustments between principal and income. Provides more discretion to the fiduciary in allocating principal and income to beneficiaries. Repeals Ohio's current Principal and Income statutes. AMENDS: See BILL |
| Amended HB 533 - Physician-Patient Privilege Waiver for Will Contests |
| Effective date: 12/30/02 |
SUMMARY - Permits any party to a Will Contest Action to waive the testimonial privilege between a physician and a deceased patient. A party must demonstrate to the Court that the testimony is necessary to establish the party's rights. The physician or dentist may be compelled to testify or to submit to discovery only on issues relevant to the competency of the patient at the time of the execution of the will. AMENDS: 2317.02 |
| Substitute SB 27 - Adoption Background Notice |
| Effective date: 03/15/02 |
SUMMARY - Includes prospective adoptive couples as those who are to be provided with information regarding a child who has been previously adjudicated a delinquent. Prospective adoptive couples shall be provided with this information prior to the placement of the child with the couple. The information includes social history, a description of all acts committed, and any substantial and material conclusions of any mental or emotional examinations. The child shall be subjected to a psychological exam, unless an exam was conducted no more than one (1) year prior to the child's placement. Also, an entity is not required to conduct the examination if a foster caregiver seeks to adopt and an examination was conducted no more than two (2) years prior to the date the foster caregiver seeks to adopt and an examination was conducted no more than two (2) years prior to the date the foster caregiver seeks to adopt the child. The substantial and material results shall be provided to the prospective adoptive couple within sixty (60) days after the placement of the child. Allows the Juvenile Court to order parents of adopted children to pay child support for the care, support, maintenance, and education of their child placed in temporary custody. Agencies shall be required to provide information to the foster caregiver seeking to adopt in their prefinalization assessment. This information includes a disclosure of the abuse and behavior of the child, suggested interventions, and assistance available if the child exhibits these behaviors after adoption. The Department of Job & Family Services shall develop a standardized form for the disclosure of this information. The Department of Job & Family Services shall create a task force to study methods to assess children's behavior in foster care and adoption systems. AMENDS: 2151.36, 2151.62, 2919.231, 3107.013, 3107.12, 3119.01, (and 2151.36 effective 1/1/02) |
| Substitute SB 158 - Organ Donations |
| Effective date: 11/21/01 |
SUMMARY - Eliminates the two-witness requirement for an organ donation statement except when the donor is under the age of 18, whereby two witnesses including a parent or guardian must still sign the statement. Eliminates the presumption that a specific gift is intended where the statement is ambiguous as to intent to give a general or specific anatomical gift. Establishes that any anatomical gift designation made prior to the effective date of this section by a person 18 years of age or older that includes that person's signature is valid regardless of whether it has been witnessed. Allows the use of Second Chance Trust funds to develop donor awareness programs in schools. AMENDS: 2108.04, 2108.08, 2108.10, 2108.15 |
| Substitute SB 226 - Probate Court Approval of Lottery Prize Transfers |
| Effective date: 09/17/02 |
SUMMARY - Permits the transfer of a lottery prize award upon prior approval of the Probate Court. Enacts specific requirements for the transfer of a lottery prize including proper disclosures; an application for approval; and an order based on express findings by the Probate Court. AMENDS: 3770.07, 3770.072, 5733.51, 5733.98, 5747.20, 5747.98 |
| Substitute SB 247 - PERS Option for Partial Lump Sum |
| Effective date: 10/01/02 |
SUMMARY - Allows an option of receiving retirement benefits as a partial lump sum followed by a reduced monthly allowance. The lump sum amount must be not less than six (6) times the monthly amount that would be payable to the member and not more than thirty-six (36) times that amount. Creates an option of having a survivor benefit consist of a lump sum and a reduced monthly payment for surviving spouses and designated beneficiaries of former PERS, STRS, and SERS members. Allows certain PERS retirants who became reemployed prior to June 30, 1991, in positions covered by PERS to make a one-time election to receive a retirement allowance during reemployment. Permits reemployed retirants to receive the retirement allowance that accrues during reemployment as an annuity that continues after the retirant's death to a survivor. Revises the law governing administration and participation in any PERS defined contribution plans. An elected official may elect to participate in the defined contribution plan if the official becomes a member on or after the date the PERS establishes a defined contribution plan and the election is made not later than 180 days after applying for membership in the system. Requires that elected officials participate in the defined benefit plan or a defined contribution plan with definitely determinable benefits if an elected official purchases credit for service as an elected official prior to PERS membership. Makes several other changes to laws governing STRS, SERS, OPFPF, and the State Highway Patrol Retirement System. Similar to HB 535. AMENDS: See BILL |
| Substitute SB 261 - Budgetary Modifications |
| Effective date: 06/05/02 |
SUMMARY - Imposes a tax on the accumulated income of Trusts. This tax contains a sunset provision that eliminates the tax on June 30, 2003. AMENDS: See BILL |
| SB 281 - Medical Malpractice Reform |
| Effective date: 04/10/03 |
SUMMARY - States that all creditors of the estate shall present claims to the executor within one year after the decedent's death and shall bar all claims not presented within that year. If the amount of the attorney's fees exceed the applicable amount of the limits on compensatory damages for noneconomic loss, the attorney shall make an application in the probate court for review of fees. AMENDS: 2117.06 and 2323.43 |
