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Court Budget
The money to operate the probate court is provided
by the general fund of the county in which the court is located. However,
the court returns to the general fund substantial monies through
collection of fees and costs. A charge collected with the issuance of each
marriage license allows Ohio probate courts to contribute more than a
million dollars annually to the fund for battered spouses.
Jurisdiction
of the Court
The Ohio Revised Code places more than two hundred
separate duties upon the probate court. Those duties range from issuing
marriage licenses to overseeing testamentary trusts valued in millions of
dollars. The following is a brief outline and description of some of the
duties of the court.
Administration
of Estates
Estate administration involves the court overseeing
transfer of a decedent's probatable assets to his or her beneficiaries and
heirs. The court accomplishes this task by appointing a fiduciary, either
an executor or an administrator, who collects the assets, pays any
outstanding debts, and then distributes the remaining assets to those who
are entitled to receive them. The court supervises the actions of the
fiduciary by requiring a bond, when necessary, and the filing of various
documents, including an inventory of the estate assets and an accounting.
Wills
The probate court is responsible for wills as
follows:
Safekeeping
- - Prior to the death of the testator
(maker), for a small filing fee, a will may be deposited with the probate
court for safekeeping.
Probate
- On the death of the testator, a will is
admitted to probate by the court. Once admitted, the will may control
estate administration and the distribution of the decedent's assets. If no
will is admitted to probate, the Ohio Revised Code will control
administration and distribution of the decedent's assets.
Will Contest -
If a will is contested, a trial is conducted by the court to determine the
validity of the will. If requested, a trial by jury is mandatory.
Consent for
Medical Treatment
Objections to consent for medical treatment, given under powers of
attorney for health care or advanced directives (living wills), are filed
in the probate court. In addition, objections and authority for consent to
medical treatment when there is neither a power of attorney nor an
advanced directive are also filed in the probate court.
Guardianships
The court may appoint, after a hearing and an investigation, a guardian
for a minor, or for an adult who is found to be incompetent to take proper
care off himself/herself or their property. A guardian, with court
supervision, is responsible for making personal and/or financial decisions
for the ward. Court supervision is accomplished, in part, through the
filing of reports and accountings by the guardian. Both a minor and an
adult ward have a number of rights and protections to insure against an
unnecessary or ineffective guardianship, including, for the adult ward,
the right to be represented by an attorney.
Conservatorships
The court grants a conservatorship when the conservatee, the person who is
the subject of the conservatorship, consents. A conservatee must be
mentally competent but may be physically infirm. The laws and procedures
of guardianship may apply to conservatorships.
Mental Illness and
Mental Retardation
Civil involuntary commitments of people with mental illness and mental
retardation are the responsibilities of the probate court. The court is
required to hold evidentiary hearings to determine the appropriateness of
commitment and the length and place of treatment. Since the involuntary
commitment involves the loss of liberty, the court insures protection of
an individual's rights by providing legal representation at each step of
the commitment process.
Adoptions
All adoptions must be approved by the probate court before they become
final. A person or persons wishing to adopt are required to submit to an
investigation of their living environment by professionally - trained
personnel to insure their suitability as parents.
Birth
Certificates, Registrations, and Corrections
If a birth has never been recorded, or if a birth certificate has been
lost, destroyed, or improperly or inaccurately recorded, the probate court
has the power, upon application, to require recording or correction of the
certificate.
Information on births prior to 1908 is available from the probate court.
For individuals born prior to 1908, a certified certificate of birth may
be obtained from the probate court.
Changes of Name
Applications for legal change of name are filed in the probate court.
After publishing of notice and hearing, the court, if reasonable and
proper cause exists, may grant a name change.
Marriage
Licenses
The probate court has exclusive jurisdiction to issue marriage licenses.
More than 100,000 marriage licenses are issued annually by Ohio Probate
Courts.
Land
Appropriations
The probate court has concurrent jurisdiction with the general division of
the court of common pleas to hear land appropriation cases. In a land
appropriation, real property is being taken by the state, city, county, or
a public utility under the laws of eminent domain, for a public purpose
such as highway or power line construction. The main question resolved,
usually by a jury, is the value to be paid to the owner(s) of the property
taken.
Testamentary and
Inter Vivos Trusts
The probate court is responsible for insuring that the terms of
testamentary trusts (those created by a will) are complied with. This is
accomplished, in part, through periodic accountings to the court.
Questions involving interpretation and enforcement of both testamentary
and inter vivos trusts (those created during a person's lifetime) may be
submitted to the court.
Appointments to
Boards and Commissions
It is the responsibility of the probate judge to appoint members of
various independent boards and commissions. As an example, all of the
members of county metropolitan parks boards and facilities review boards
are appointed by the probate court judge. In addition, when a vacancy
occurs on a school board or a board of township trustees, the probate
judge, after a period of time prescribed by statute, must appoint an
individual to fill the vacancy.
Law and Procedure
in the Probate Court
The Probate Code (Title 21 of the Ohio Revised Code), Rules of Civil
Procedure, Rules of Superintendence, Case Law, and Local Court Rules are
the major sources for law and procedures in the probate court.
In the majority of probate
matters, procedure is informal. Normally, probate filings consist of
various forms, affidavits, reports, accountings, or other documents filed
for the court's review. In most cases, there is no opposition to those
filings; thus, there is not an adversary situation in which two opposing
parties appear before the court in a courtroom setting. Much of the
court's work is done with only one party before the judge, magistrate, or
deputy clerk in an informal setting.
When a contested or
adversarial matter, such as a declaratory judgment, will contest, or land
appropriation, is heard, court procedure is identical to that of any other
trial court.
Jury Trials in the
Probate Court
The court, or judge, always determines or rules on questions of law. If
there is a question of disputed fact in a contested or adversarial matter
in probate court, the judge has the option of deciding issues of disputed
fact or of impaneling a jury and allowing the jury to determine any
questions of fact.
The exception to the rule is found in will contests, concealment of
assets, and land appropriations. In those matters, the court, when
requested by a party, must impanel a jury to determine disputed facts. In
practice, with the exception of will contests and land appropriations,
almost all probate matters are decided by a judge or magistrate sitting
without a jury.
Records
With the exception of the juvenile court judge, the probate judge is the
only judge who is ex officio clerk of his own court. As clerk, he is
responsible for the keeping and maintaining of all records and filings of
the probate court.
Court Officers
JUDGE - The office of judge of the court of common pleas,
probate division, is an elected, non-partisan, office with a six (6) year
term. As a judge of the court of common pleas, the probate judge, in
addition to exclusive probate jurisdiction, has full criminal and civil
powers. When assigned to one of the other divisions, a probate judge may
hear either criminal or non-probate civil cases.
Magistrates -
- Under Ohio law, a judge may appoint attorney magistrates to handle
certain cases filed with a court. Due to heavy caseloads, probate courts
use the magistrate system. A magistrate acts and makes his or her decision
in the same manner as a judge. In contested matters, either party may
object to the magistrate's decision. If no objections are filed, the
decision becomes the order of the court. If an objection is filed, the
judge, after hearing, may accept, modify, or reject the decision and
rehear the matter. The magistrate system has proven to be an efficient and
effective means of handling an ever-increasing volume of filings
Investigators -
- To determine whether to grant an adoption or guardianship and to
supervise guardianships, the probate court appoints court investigators. A
probate court investigator, before appointment, must meet specific
educational and training requirements.
Deputy Clerks -
The Ohio Revised Code authorizes the probate judge to appoint deputy
clerks to assist in carrying out the business of the court. All of the
court’s employees are sworn as deputy clerks. The specific task of each
clerk varies from that of issuing marriage licenses to handling and
reviewing inventories and accounts. Each clerk is authorized to act in an
official capacity to accept filings and certify records of the probate
court.
Legal Practice of
the Probate Court
Legal practice in the probate court is restricted by law to attorneys who
are licensed by the Supreme Court of Ohio. If an individual wishes to
handle his or her own case, he or she may do so; however, they may not
represent others. Due to the complexity of the law and desire to avoid
costly errors, many individuals who have filings before the court are
represented by an attorney. Deputy clerks are prevented by law from
practicing law and, therefore, are limited in the amount of advice they
are permitted to give.
About this Web
Page
This web page is designed as a service to the public in order to provide a
general understanding of the duties and procedures of the probate court.
This web page should not be considered as a legal reference. If you have a
legal question dealing with probate, an attorney should be consulted.
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