News and Updates
Sixth Bench-Bar Practical Probate Seminar – Wednesday 8/28/2019-Morning
Save the date! The 3 hour morning local seminar will be conducted at the Willis Building, Delaware, OH. More details will be forthcoming as the date draws nearer; however, reserve the time on your calendar now.
New Legislation (effective 3/22/2019) –
On March 22, 2019 the Omnibus Probate Bill and several amendments thereto, (collectively 132nd Gen Assembly; HB 595) will become effective. The Bill is recommended reading due to the myriad of topics that it covers. Briefly, the highlights are:
-The “Slayer Statute” (RC 2105.19) has been amended to include involuntary manslaughter not resulting from a felony vehicular homicide offense in the list of offenses excluding an individual from inheriting from a decedent;
-Establishes the specificity required for a will to clearly and expressly incorporate a trust instrument [RC 2107.05 (B), (C) and (D)] for the wills of decedent’s dying after the 3/22/19 effective date;
-Adds the requirement that for admission of a will, the will must have been executed in conformity with the law in the jurisdiction in which the testator was physically present when the will was executed (RC 2107.18); the Ohio law in force at that time; or the law of the jurisdiction of the testator’s domicile at death. This is intended to prohibit the admission of wills signed electronically by the testator in Ohio, but witnessed remotely in another jurisdiction (such as Nevada) that permits such actions;
-Adds authority of the probate court to create a trust for all, or a portion of assets, passing to a minor beneficiary until the minor attains age 25, when the trust is in the minor’s best interest, with the Court maintaining continuing jurisdiction over the assets until age 25. This is consistent with the wrongful death provisions and it applies to money or property whether from settlement or judgment for personal injury or damage to tangible or intangible property, inheritance, or otherwise (RC 2111.182);
–Eliminates the requirement for probate court approval for depositing fiduciary funds in an IOLTA account and permits such deposits if they are either “nominal” in amount, or held for a “short period of time”. Both conditions need not be met, only one. (RC 2109.41 and RC 4705.09);
-Establishes the extent of enforcement of arbitration trust clauses in non-testamentary trusts (RC 5802.05);
-Establishes detailed provisions and procedures for the testator and/or trust settlor to obtain a pre-death determination of the validity of their will, or their trust and related will (Chapter 5817), including the required contents of the complaint in each instance, the mandatory parties to the litigation, and the burden of proof assigned the respective parties;
-Clarifies that any communication between an attorney and a client acting as a fiduciary (trustee under express trust, executor, or administrator) is privileged and protected from disclosure to third parties to whom the fiduciary owes fiduciary duties. [RC 5815.16(B)];
-Permits the probate court(s) to create single, or multi-county guardianship services boards with the board members being appointed by the probate court, the MHRS Board and the DD Board; with the board hiring a director and employees to manage adult guardianship for whom the board or its director are named guardian (person and/or estate), thereby becoming a public guardian (RC 2111.52);
-Establishes a procedure whereby a person eligible to be appointed as the decedent’s personal representative to file with the probate court for a release of decedent’s medical records and medical billing records for the limited purpose of determining whether to pursue a wrongful death claim, without opening a full estate proceeding (RC 2113.032); but with a requirement of not less than 10 days notice to the individuals reflected on the Form 1.0 that must be filed with the Application.
Where appropriate, the Probate Court is endeavoring to develop local forms to assist counsel with the local implementation of several of these changes
Local Probate Rules Adopted (effective 1/2/2019)
The Probate Court adopted the proposed revisions to the Local Rules effective 1/2/2019. Changes were made to Loc.R. 57.2 (Current Street Address); Loc.R. 57.6 (Court Filings -printed names below illegible signatures); Loc.R. 64.2 (Contents of Probate Accounts must reflect the gains/losses from real estate sales as per Sup.R. 64(B)); Loc.R 64.6 (Bond – consent sales of real estate may result in bond increase); Loc.R. 66.08 (Guardian Responsibilities – local form for seeking compensation for direct services by guardian); Loc.R. 68.5 (Structured Settlements may not extend beyond age 25 for a minor); Loc.R. 73.2 (Indigent Guardian payments may be made to certified National Master Guardians); Loc.R. 75.5 Releases and Summary Releases -require documentation of value and ownership); Loc.R. 78.4 (Jury Trials – failure to pay jury cost deposit results in waiver of jury, unless indigence established). A new Loc.R. 78.9 (Exceptions to Rules – recognizes the Court may grant exceptions to the local rules) was added. There were miscellaneous structure, punctuation and grammatical changes. A copy of the new rules is available on this website at the Local Rules/Local Forms page.
Building Address Changes (effective 1/1/2019)
The address for the building in which the Probate/Juvenile Court is located changed from 140 N. Sandusky St., Delaware, OH 43015 to 145 N. Union St., Delaware, OH 43015 on January 1, 2019. This a only a change in address to reflect that the location of the public entrance to the building is on N. Union St. and it did not involve a physical move of the court’s facilities. The mailing address continues to be PO Box 8006, Delaware, OH 43015-8006. On the same date, the address for the new County Courthouse which houses the General and Domestic Divisions, Court of Common Pleas, the County Clerk of Courts and Adult Probation changed from 110 N. Sandusky St., to 117 N. Union St. Attorneys should be mindful to update their office forms software to reflect the new address as the default address for the Court for standard forms and Notices.
Expansion of Mandatory Reporters of Abuse, Neglect and Exploitation of Elders (effective 9/29/18)
The Ohio Adult Protection Act has been broadened to expand the definition of mandatory reporters of abuse, neglect, and exploitation of protected persons age 60 or older. The list now includes pharmacists, dialysis technicians, firefighters, first responders, building inspectors, CPA’s, real estate agents, bank employees, financial planners, and individuals serving as a notary public. (RC 5101.63). Individuals who are mandatory reporters with reasonable cause to believe abuse, neglect or exploitation have occurred to protected persons age 60 or older are required to report it to adult protective services (DJFS) and receive specified civil and criminal immunity when doing so.
Appointment of a Successor Custodian under OH UTMA
The Court has created a specific link and web-page to assist with the procedure for obtaining the Court’s designation of a successor Custodian for assets being held by a resigning, deceased, or incompetent Custodian under the Ohio Uniform Transfer to Minors Act. Local forms are provided on the web-page in PDF fillable format.
Guardianship Adult Jurisdiction Affidavit
All Applications for Appointment of Guardian for Incompetent must be accompanied by a completed Adult Jurisdiction Affidavit (DCPC Form 66.12). The form is available on this website at the “Guardianship-Adult” tab in the Pre-Hearing forms list.
Inventories with Real Estate Legal Descriptions Missing will be Rejected
Inventories containing real estate that do not also include the legal description for the property will be rejected as non-conforming filings. Filers of inventories (estates, trusts and guardianships) with real estate are reminded that Loc.R. 78.1(B) requires that an inventory that includes real estate also contain the legal description, address, and tax parcel identification number (PIN) for the real estate. Please take note and remind your office staff.
The 2017 Annual Report is now available.