Recent Probate Legislation 126

Recent Probate Legislation

126th General Assembly (2005 - 2006)

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 9 - Public Records Law

Effective date 03/29/07

SUMMARY - Revises public records law. Requires all public offices to adopt a public records policy. Additionally, requires the Attorney General to develop, provide, and certify training programs and seminars for all elected officials or their designees and requires the elected officials or designees to attend such training. Designates the State Auditor to audit public offices for compliance with adopting a policy and attending training. Provides that all public records that are not confidential or otherwise exempted, shall be, upon request, promptly prepared and made available for inspection to any person at all reasonable times during regular business hours. The public office that provides the public record may require the requesting party to pay, in advance, the costs involved in providing copies as requested, including payment for postage. AMENDS: 149.011, 149.31, 149.38, 149.39, 149.41, 149.42, 149.43, 321.46, 2923.129, 3319.321, and 4123.88 Also AMENDS Section 1 of Sub. H.B. 101 of the 126th G.A. ENACTS: 109.43, 149.411, 149.412

Substitute HB 48 - Identity fraud-increase penalty/passport

Effective date: 09/16/05

SUMMARY – Provides that the victims of identity theft can apply for an identity fraud passport to assist them in reestablishing their credit. Once the police report has been filed, the victim may apply for the passport through local law enforcement. The local law enforcement agency sends the application to the Attorney General. The Attorney General processes the application and issues the passport. The bill also increases the penalty for identity fraud against an elderly person or disabled adult. Ohio R.C. 2913.49 (F)(1) provides that it is an affirmative defense that the person using the personal information is acting in accordance with legally recognized guardianship or conservatorship or as a trustee or fiduciary. This bill is the same as HB 389 125th GA. AMENDS: 2913.49 ENACTS: 109.94
Back to Top

Amended Substitute HB 66 - Main Operating Budget FY 2006-2007

Effective date: 06/30/05

SUMMARY – Amends section 2117.061, which deals with Medicaid estate recovery program. If the decedent was 55 or older or permanently institutionalized, the person responsible for the decedent’s estate must determine if the decedent ever used Medicaid, and if so, he or she must complete a report containing all of the decedent’s probate and non-probate assets, for submission to ODJFS. The statute provides inconsistent language as to who must submit this report: either the person responsible for the estate, or the Probate Court. (The Probate Court does not have access to non-probate assets.) This report shall be submitted no later than 30 days after Letters of Authority are issued, the administration of the estate, or the filing of a release from administration. Any claim against the estate to recover Medicaid expenses shall be made within 90 days of ODJFS receiving the report, or one year after the decedent’s death, which ever is later. Amends 5111.11 to define “Estate” for the purposes of Medicaid estate recovery to include probate and non-probate assets of the decedent and defines that “Time of death” shall not be construed to mean a time after which legal title in real or personal property may pass by survivorship due to the death of the decedent. The bill amends section 2303.201 to require the Probate Court to increase the legal aid surcharge on name changes, adoptions, and guardianships from $15 to $26 and to place a $26 surcharge on decedents’ estate proceedings. (The Ohio Probate Judges Association has interpreted decedents’ estate proceedings to mean the full administration of decedents’ estates.) Additionally, this bill deletes the requirement of reporting to the Department of Job and Family Services a summary of adoption proceedings [3107.10]. Provides that a managing officer of a hospital, who releases medical information to obtain payment for goods and services to the patient, is not subject to liability [5122.31]. The bill constructively repeals (through the year 2010) the Ohio Additional Estate Tax (Sponge Tax), and the Ohio Generation Skipping Transfer Tax by “coupling” these taxes to credits no longer available under the Internal Revenue Code. [5731.01, 5731.18, 5731.181] Phases out the Ohio Additional Estate Tax for decedents who die between January 1, 2002, and the effective date of the bill by providing for a credit against the Ohio Additional Estate Tax. [557.03] Repeals the Ohio Estate Tax deduction for a family owned business. [5731.20] Section 5101.802 creates the kinship permanency incentive plan. This plan provides payments to a kinship caregiver who has custody of a minor child to defray costs of placement and to encourage permanent placement. If the probate court establishes a minor guardianship, the guardian/caregiver may be eligible to receive such payments. Section 5121.09 allows only agents of the department of mental retardation and developmental disabilities to petition the probate court for guardianship of the estates of residents of institutions under the jurisdiction of the department. This bill excludes the estates of “patients” and excludes the department of mental health as a department that may petition the probate court for guardianship of the estate of a resident. Section 5121.51 allows an agent of the department of mental health to petition the probate court to appoint a guardian of the estate of a patient in a hospital. Section 5731.22 allows an application for remission of penalties for failure to file an estate tax return or for failure to pay an estate tax upon showing of reasonable cause. After the tax commissioner considers an application and makes a determination, the applicant may file an exception to the tax commissioner’s decision in the probate court as provided under RC 5731.30. AMENDS: 557.03, 2113.041, 2117.061, 3107.10, 5101.802, 5111.11, 5121.09, 5121.51, 5122.03, 5122.31, 5123.01, 5123.701, 5123.71, 5123.76, 5126.01, 5731.01, 5731.05, 5731.131, 5731.14, 5731.18, 5731.181, 5731.22, 5731.39, and other non-related statutes. REPEALS: 5123.041, 5731.20
Back to Top
Substitute HB 81 - Credit Union Law

Effective date: 04/14/06

SUMMARY – Amends laws regarding credit unions. Authorizes credit unions to be fiduciaries and establish and maintain trust accounts; authorizes accounts to be held by credit unions under laws relating to probate and intestate succession including custodial accounts, probate accounts, guardianship accounts, and trust accounts. AMENDS: 119.01, 1733.01, 1733.04, 1733.05, 1733.16, 1733.22, 1733.24, 1733.25, 1733.29, 1733.30, 1733.31, 1733.32, 1733.33, 1733.37, 1733.38, 1733.412, 1733.44, 2101.161, 2105.31, 2109.13, 2109.372, 2109.41, 4705.09, and 4973.17 REPEALS: 1733.251
Back to Top
Amended HB 102 - Embryo Donation - Clarify Parentage

Effective date: 06/12/06

SUMMARY - Clarifies the parentage of children born as a result of embryo donation. If a married woman gives birth to a child born as a result of embryo donation to which her husband consented, the husband shall be treated in law and regarded as the natural father of the child. (does not follow genetics) Amended in the Senate to further provide that if a married woman gives birth to a child born as a result of embryo donation without her husband's consent, that lack of consent can provide clear and convincing evidence that overcomes the presumption that the husband is the father. AMENDS: 3111.03 ENACTS: 3111.97

Substitute HB 144 - Probate - Waive Dr/Patient & Atty/Client Privilege

Effective date: 06/12/2006

SUMMARY - Revises current law to exempt otherwise privileged communications when the communication is between a client who has since died and his/her attorney, and is relevant to a dispute between parties who claim through the deceased client whether through testate, intestate, or an inter vivos transaction. Additionally, otherwise privileged communication made between a patient who has since died and his doctor/dentist is exempted if the communication is relevant to a dispute between parties who claim through the deceased client whether through testate, intestate, or an inter vivos transaction. This exemption does not require a mental health professional to disclose psychotherapy notes. Furthermore, the surviving spouse, executor, or administrator need not consent to the disclosure of the deceased patient's medical records. A party may object to the disclosure, and may seek a protective order pursuant to Civil Rule 26 as recourse. The person to whom the protected health information was disclosed may not disclose or use that information for any other purpose than the litigation or proceeding for which the information was requested. Amends section 2107.76 to provide that persons not required to receive Notice of the Admission of Will to Probate pursuant to section 2107.19 may not commence an action to contest the validity of the will more than three months after the initial filing of the Certificate of Notice of the Admission of the Will to Probate. Section 2107.76 is also amended to provide that the savings statute, section 2305.19, does not apply to a will contest action. AMENDS: 2317.02, 2107.76


Sub. HB 235 – Coroner’s Law - Revisions

Effective date: 08/17/06

SUMMARY – Changes the law re coroner’s records which previously were public records. The bill states the following records in a coroner’s office are not public records: Preliminary autopsy and investigation notes and findings made by the coroner; Photographs of a decedent; Suicide notes; Medical and psychiatric records. The coroner shall provide a copy of the full and complete records of the coroner upon written request to a person as the next of kin of a decedent in the following priority: Surviving Spouse Any child of the decedent over 18 years of age Parents Brothers and sisters If no next of kin, the representative of the estate of the decedent. AMENDS: 313.05, 313.08, 313.10, 325.17, 3705.16, 3705.29, 3705.99, 3901.21, 4705.01, 4731.053 ENACTS: 313.123, 313.23

Substitute HB 246 - Power of Attorney

Effective date: 03/29/06

SUMMARY – Permits a surviving spouse to take a motorcycle as one of the two automobiles the surviving spouse may take outside of probate. Creates a statutory power of attorney form, and sets forth the general powers of the attorney in fact. AMENDS: 2106.18 ENACTS: 1337.18, 1337.19, and 1337.20
Back to Top
Amended HB 265 - Treat non-complying document as a will

Effective date: 07/19/06

SUMMARY - Provides a procedure for the Probate Court to treat a document as a will not withstanding its noncompliance with § 2107.03. The proponent of the will must prove by clear and convincing evidence that: A) The decedent prepared or caused the document to be prepared, B) The decedent signed the document and intended the document to be his/her will, and C) Two or more witnesses saw the descendent sign the document. Allows the executor of an estate to file an action to recover court costs and attorney's fees from the lawyer responsible for improperly executing the will. AMENDS: 2107.27 ENACTS: 2107.24

Sub. HB 294 – Delinquent Taxes - Expedited Foreclosure

Effective date: 09/28/06

SUMMARY – Requires a residential rental property owner to file with the county auditor certain information about the owner and the property. Requires the owner of residential rental property, if the owner is a trust, business trust, estate, partnership, limited partnership, limited liability company, association, corporation, or any other business entity, to file with the county auditor of the county in which the property is located the name, address, and telephone number of the following: (a) A trustee in the case of a trust or business trust; (b) the executor or administrator in the case of an estate…. AMENDS: 5715.19, 5721.01, 5721.03, 5721.06, 5739.03, 5739.033, 5739.24, 5741.02 ENACTS: 323.65, 323.66, 323.67, 323.68, 323.69, 323.70, 323.71, 323.72, 323.73, 323.74, 323.75, 323.76, 323.77, 323.78, 5323.01, 5323.02, 5323.03, 5323.04, 5323.99
Back to Top
Sub. HB 416 – Uniform Trust Code

Effective date: 09/28/06

SUMMARY – Creates a new title in the Ohio Revised Code: Title 58. This legislation creates the Ohio Trust Code which is adopting a modified version of the Uniform Trust Code, incorporating existing Ohio trust codes, as well as Ohio common law of trusts. The resulting hybrid of all three will be known as the Ohio Trust Code and be included in chapters 5801 to 5811. Included in the Ohio Trust Code is the Uniform Prudent Investor Act as chapter 5809. Chapter 5812 is the Uniform Principal and Income Act. Chapter 5813 is the Institutional Trust Fund Act, and Chapter 5814 is the Uniform Transfers to Minor’s Act. The Ohio Trust Code applies to charitable trusts, non-charitable trusts, and inter vivos trusts. It also applies to testamentary trusts to the extent that it is not in conflict with chapter 2109. The Ohio Trust Code is essentially a default code and the terms of a trust will prevail over any provision of the Revised Code. Section 5801.04 lists fourteen exceptions to this policy where the Code cannot be overwritten by a trust document. The Ohio Trust Code is organized as follows:
	Chapter 5801-General Provisions Chapter 5802-Judicial Proceedings Chapter 5803- Representation Chapter 5804-Creation, Validity, Modification, and Termination Chapter 5805-Creditors Claims, Spendthrift, and Discretionary Trusts Chapter 5806-Revocable Trusts Chapter 5807-Office of Trustee Chapter 5808-Duties and Powers of Trustee Chapter 5809-Ohio Uniform Prudent Investors Act Chapter 5810-Liability of Trustees and Rights of Persons Dealing with Trustee Chapter 5811-Miscellaneous Provisions
AMENDS: 1111.13, 1111.15, 1151.191, 1161.24, 1319.12, 1339.01, 1339.02, 1339.03, 1339.04, 1339.08, 1339.09, 1339.10, 1339.11, 1339.12, 1339.13, 1339.15, 1339.151, 1339.16, 1339.17, 1339.31, 1339.32, 1339.33, 1339.34, 1339.35, 1339.36, 1339.37, 1339.38, 1339.39, 1339.42, 1339.44, 1339.52, 1339.53, 1339.54, 1339.55, 1339.56, 1339.57, 1339.58, 1339.59, 1339.60, 1339.61, 1339.62, 1339.64, 1339.65, 1339.71, 1339.72, 1339.73, 1339.74, 1339.76, 1339.77, 1339.78, 1340.31, 1340.32, 1340.33, 1340.34, 1340.35, 1340.36, 1340.37, 1340.40, 1340.41, 1340.42, 1340.46, 1340.47, 1340.52, 1340.57, 1340.58, 1340.63, 1340.65, 1340.66, 1340.70, 1340.71, 1340.72, 1340.73, 1340.74, 1340.75, 1340.76, 1340.77, 1340.81, 1340.82, 1340.83, 1340.84, 1340.90, 1340.91, 1775.03, 1775.14, 1775.15, 1775.17, 1775.33, 1782.24, 2101.24, 2107.33, 2109.37, 2109.62, 2109.68, 2111.131, 2113.861, 2305.121, 2305.22, 5111.15, 5111.151, 5119.17, 5121.04, 5121.10, 5121.30, 5121.52, 5123.04, 5123.28, and 5123.40 ENACTS: 2109.69, 5801.01, 5801.011, 5801.02 to 5801.10, 5802.01 to 5802.03, 5803.01 to 5803.05, 5804.01 to 5804.18, 5805.01 to 5805.07, 5806.01 to 5806.03, 5807.01 to 5807.09, 5808.01, 5808.02, 5808.04, 5808.06, 5808.08 to 5808.17, 5809.06, 5810.01 to 5810.13, and 5811.01 to 5811.03 REPEALS: 1335.01, 1339.14, 1339.66, 1339.67, 1339.69, 1340.21, 1340.22, 1340.23

Sub. HB 426-Remains Disposition
Back to Top
Effective date: 10/12/06

SUMMARY – Gives the Probate Court exclusive jurisdiction to hear and determine actions regarding the rights of disposition, disinterment, and reinterment. A person who has the right of disposition may be reimbursed for funeral costs and can give consent for an autopsy. Provides that an adult may execute a written declaration that assigns the right to direct the disposition of the body after death. The assignment vests at the declarant’s death. The declaration must be signed by either a notary public or two witnesses. The declaration shall have priority over all other documents that assign the right of disposition except if the declaration has been revoked, or subsequent declaration has been executed and is inconsistent with the original. (e.g. antemortem cremation authorization, pre-need funeral contract, or a will) Provides that the Probate court may, on its own motion or on a motion by another person, find that a spouse is estranged, which would prevent the spouse from serving as a representative pursuant to the declaration. Provides that, if there is no declaration, the following, in this order, have the right of disposition: surviving spouse, child or children, parent or parents, sibling or siblings, grandparent or grandparents, guardian, or any other person willing to assume the right of disposition. Provides that a funeral home, funeral director, or crematory operator shall not be liable for refusing to dispose until they receive a court order. Also, the funeral home, director, or crematory operator has the right to rely on the written declaration for the final disposition, and shall not be liable for their good faith reliance. Requires that a notice be included in pre-need funeral and cemetery contracts about the right of disposition to encourage the written declaration of disposition preferences. Changes the amount of assets in a decedent’s estate in order to qualify for a Summary Release from Administration, O.R.C. 2113.031, from $2,000 to $5,000. Amends the priority of claims statute, O.R.C. 2117.25, to increase the preferred claim for funeral expenses to $4,000 in section (2) and $2,000 in section (6) and increases the preferred claim for burial expenses to $3,000. Also allows a credit to an executor, administrator, or a person with the right of disposition under 2108.70 for just amounts expended for a tombstone or monument. Prohibits owners and employees of funeral homes, cemeteries and other businesses from serving as designated representatives in disposition agreements and requires trustees of pre-need funeral contracts to notify consumers that sellers have deposited their money. Provides for each successor representative to be considered in the order of designation in the agreement. AMENDS: 2101.24, 2106.20, 2108.50, 2109.02, 2111.13, 2113.031, 2113.37, 2117.25, 4717.21, 4717.21 ENACTS: 517.231, 2108.70, 2108.79, 2108.81, 2108.92, and 2117.251

HB 530 – Budget Corrections/Capital Reappropriations
Back to Top
Effective date: 03/30/06
SUMMARY – Amends R.C. 120.36 to include the Probate Court in the definition of “clerk of court.” Requires clerks of court to assess a $25 application fee for any defendant in a criminal case who requests or is appointed a state public defender, a county or joint county public defender, or any other court appointed counsel. The defendant must pay the application fee to the clerk of court at the time of filing an affidavit of indigency or a financial disclosure form with the court, public defender, or other counsel or within seven (7) days of the date of filing. If the defendant does not pay within the seven days, the court may assess the fee at final disposition. Includes actions in Probate Court by defining a criminal case to include any case that involves a violation of the Revised Code or a Municipal Ordinance that imposes a penalty which could result in loss of liberty, including contempt proceedings in which the court may impose imprisonment. AMENDS: 120.36 and other non-related statutes.

Amended Substitute SB 10 - County MRDD boards-revised law

Effective date: 09/05/05

SUMMARY – Revises the law governing county boards of mental retardation and developmental disabilities (MRDD). The senior probate judge of a county, and the county commissioners, can join a multi-county MRDD board, or they can have an MRDD board for their county only. Multi-county boards are limited to five counties, and the counties must be contiguous. The senior probate judge and the commissioners can terminate their involvement in a multi-county board by issuing an order that specifies their last day on the board. Each board shall consist of seven members. If the board is a single county board, the commissioners appoint five members, and the senior probate judge appoints two members. If it is a two county board, the commissioners of the county with the largest population shall appoint three members, the commissioners of the other county shall appoint two members, and the probate judges shall appoint one member each. If it is a three county, the commissioners of the counties with the largest and second largest populations shall each appoint two members, the other commissioners shall appoint one member, and the senior probate judges of the two counties with the largest population shall appoint one member each. If it is a four county board, the commissioners of the county with the largest population shall appoint two members, the other three commissioners shall appoint one member each, and the senior probate judges of the two counties with the largest populations shall appoint one member each. If there is a five county board, each of the county commissioners shall appoint one member each, and the senior probate judges of the two counties with the largest population shall appoint one member each. AMENDS: 5126.01, 5126.02, 5126.021, 5126.022, 5126.023, 5126.03, 5126.031, 5126.033, 5126.034, 5126.056, 5126.058, 5126.081, 5126.30, 5705.191, and 5705.222. To amend for the purpose of adopting new section numbers as indicated in parentheses: 5126.02, (5126.0212), 5126.021, (5126.029), 5126.022, (5126.0215), 5126.023, (5126.0225), and 5126.024, (5126.0226) ENACTS: 5126.02, 5126.021, 5126.022, 5126.023, 5126.024, 5126.025, 5126.026, 5126.027, 5126.028, 5126.0210, 5126.0211, 5126.0213, 5126.0214, 5126.0216, 5126.0217, 5126.0218, 5126.0219, 5126.0220, 5126.0221, 5126.0222, 5126.0223, 5126.0224, 5126.0227, 5126.0228, 5126.037, and 5126.038
Back to Top
Amended Substitute SB 167 - Eminent Domain - Moratorium

Effective date: 11/16/05

SUMMARY – Establishes a moratorium on the use of eminent domain by any entity of the state government when the primary purpose is economic development that will vest ownership in the property in a private person. Also creates a legislative task force whose job is to study the use of eminent domain and to study how the US Supreme Court decision, Kelo v. New London, affects state laws on eminent domain. The task force shall consist of 25 members, one of which may be a member of the Ohio Association of Probate Judges. See HB 331
Back to Top
Am. Sub. SB 238 - Child Welfare/DJFS

Effective date: 09/19/06

SUMMARY – Adopts the provisions concerning adoption originally introduced in SB 287. Concerning adoption, this bill specifically requires adoption agencies to notify the county children services agency where the placement will occur of pending placements and of any special needs of a child; requires a second notification to the PCSA at least ten days prior to placement, listing the names of the prospective adoptive parents and the number of children who will be living in the home; requires adoption agencies to complete a special assessment of families which have, or will have, five or more children in the home; establishes authority to implement and search a confidential, statewide registry of individuals who have abused or neglected a child prior to placing a child in an adoptive home; requires a summary report of the search of the statewide registry to be included in the home study report; stipulates that adoption and foster placements cannot be denied solely on the basis of information included in the statewide registry; and provides procedures for an individual to challenge being listed on the registry. Allows an adult to be adopted if he/she was in custody of a public services agency at the time of his/her 18th birthday; allows access to the birth family’s non-identifying information; requires that the assessor who is providing the placement visit the home within 7 days of placement and every 30 days after that until the adoption is finalized; requires an agency to assume 50% financial responsibility for adopted child if later placed into a children’s services agency within 36 months of adoption; adopts substantial portions of the ICPC. AMENDS: 109.57, 109.572, 109.60, 1347.08, 1717.14, 2101.11, 2151.011, 2151.23, 2151.281, 2151.353, 2151.39, 2151.416, 2151.421, 3107.011, 3107.014, 3107.015, 3107.016, 3107.02, 3107.031, 3107.032, 3107.10, 3107.12, 3107.14, 3107.17, 3107.66, 3109.16, 3109.17, 3313.64, 5101.141, 5101.29, 5101.35, 5101.72, 5101.99, 5103.03, 5103.031, 5103.033, 5103.034, 5103.035, 5103.036, 5103.038, 5103.039, 5103.0311, 5103.0312, 5103.0313, 5103.0315, 5103.07, 5103.13, 5103.131, 5103.16, 5104.01, 5104.11, 5104.31, 5153.01, 5153.111, 5153.122, 5153.16, 5153.17, 5153.20, 5153.60, 5153.61, 5153.62, 5153.63, 5153.64, 5153.65, 5153.66, 5153.67, 5153.70, 5153.71, 5153.72, 5153.73, 5153.74, 5153.75, 5153.76, 5153.77, and 5153.78 ENACTS: 3107.032, 3107.10, 5103.20, 5103.21, 5103.22, 2151.423, 3107.034, 3107.101, 5101.13, 5101.131, 5101.132, 5101.133, 5101.134, 5103.162, 5103.18, 5103.301, 5103.302, 5103.303, 5103.31, 5103.33, 5103.34, 5103.361, 5103.40, 5153.123, 5153.124, and 5153.166 REPEALS: 5103.037, 5103.20, 5103.21, 5103.22, 5103.23, 5103.24, 5103.25, 5103.26, 5103.27, 5103.28, 5153.68, and 5153.69
Back to Top

The Ohio Trust Code applies to charitable trusts, non-charitable trusts, and inter vivos trusts. It also applies to testamentary trusts to the extent that it is not in conflict with chapter 2109.

The Ohio Trust Code is essentially a default code and the terms of a trust will prevail over any provision of the Revised Code. Section 5801.04 lists fourteen exceptions to this policy where the Code cannot be overwritten by a trust document.

The Ohio Trust Code is organized as follows:

SUMMARY – Gives the Probate Court exclusive jurisdiction to hear and determine actions regarding the rights of disposition, disinterment, and reinterment. A person who has the right of disposition may be reimbursed for funeral costs and can give consent for an autopsy.

Provides that the Probate court may, on its own motion or on a motion by another person, find that a spouse is estranged, which would prevent the spouse from serving as a representative pursuant to the declaration.

Requires that a notice be included in pre-need funeral and cemetery contracts about the right of disposition to encourage the written declaration of disposition preferences.

Changes the amount of assets in a decedent’s estate in order to qualify for a Summary Release from Administration, O.R.C. 2113.031, from $2,000 to $5,000.