Rule 8: Court Appointments
Probate Rule 8.1 Court Appointments
Persons appointed by the Court to serve as appraisers, fiduciaries, attorneys, investigators, guardians ad litem, and trustees for suit, shall be selected from lists maintained by the Court.
Appointments will be made from such lists taking into consideration the qualifications, skills, expertise, and caseload of the appointee in addition to the type, complexity, and requirements of the case.
Court appointees will be paid a reasonable fee with consideration given to the factors contained in Prof. Cond. Rule 1.5, the Ohio Revised Code, and the Local Rules of Court relating to fees.
The Court will review Court appointment lists periodically to ensure the equitable distribution of appointments.
Rule 50: Definitions
Probate Rule 50.1 Adoption, Scope, and Construction of Rules
The Family Division of the Court of Common Pleas for Marion County, Ohio adopts the following Rules for the management of proceedings and other functions of the Court pursuant to Rule 9 of the Rules of Superintendence of the Common Pleas Courts. The Court may amend these Rules from time to time as needed or as required by law.
50.1.02 These Rules are intended to supplement and compliment the Ohio Rules of Civil Procedure, the Ohio Juvenile Rules of Procedure, the Superintendence Rules of the Supreme Court of Ohio, the Marion County Family Court Local Rules and other controlling statutes.
50.1.03 These Rules shall be applied, construed and enforced so as to avoid inconsistency with other rules of Court and statutes governing proceedings of this Court. In their application, they shall be construed so as to provide fairness and to secure just, expeditious, and inexpensive determination of all proceedings. They shall apply to proceedings pending at the time they take effect.
50.1.04 These Rules shall be cited as “Marion F.C. Probate Rule X.XX.”
50.1.05 These Rules shall be effective March 1, 2012, and supersede all previous probate rules promulgated by this Court.
Rule 51: Standard Probate Forms
Probate Rule 51.1 Form Availability
Forms available for use in the Marion County Family Court, Probate Division may be found on the Supreme Court of Ohio’s website www.sconet.state.oh.us
Rule 52: Specifications for Printing Forms
52.1 Page Form
All Filings shall be printed on only one side of paper.
Rule 53: Hours of the Court
53.1 Hours of Operation of Marion County Family Court
The Marion County Family Court and its offices shall be open for the transaction of business from 8:30 a.m. to 4:30 p.m. Monday through Thursday and from 8:30 a.m. until 12:00 p.m. on Friday. The Court shall be closed on Saturday, Sunday, and legal holidays.
Rule 54: Conduct in Court
Probate Rule 54.1 Conduct in the Court
Counsel for all parties shall be present and before the Court at the assigned hearing time. If counsel is not present in Court at the assigned hearing time, the case may commence without counsel, may be continued, or may be dismissed, as the Court may decide is appropriate. If counsel is going to be late for a hearing, counsel must make a reasonable effort to notify the Judge or Magistrate as soon as practical in order to explain the reason for their lateness. Repeated lateness or absences may result in the removal of an attorney from the appointment list in the Marion County Probate Court and/or other remedial sanctions.
The unexcused failure of an attorney and/or party to appear for a hearing at the scheduled time may result, within the discretion of the Court, in subjecting the offender to any or all of the sanctions provided by law.
Probate Rule 54.2 Dress
Proper dress shall be required of all persons appearing in Probate Court. Inappropriate dress shall include, but is not limited to, shorts, tee shirts, tank tops, no shoes and/or socks. A tie is recommended but not required.
The Court may reschedule any hearing if a party appears in inappropriate dress.
Rule 55: Examination of Probate Records
Probate Rule 55.1 Examination of Probate Files, Records and other documents
Copies of open records may be obtained at a cost of $.25 per page.
Probate Rule 55.2 Confidential Records
Guardianship proceedings are confidential. Access may be authorized by the Judge.
Rule 56: Continuances
Probate Rule 56.1 Continuances in Estate Proceedings
This Court will not grant more than one extension of time for filing various estate filings such as the Inventory and Accountings. If a filing cannot be fully rendered when due, a partial filing should be filed and thereafter amended or supplemented.
Rule 57: Filings and Judgment Entries
Probate Rule 57.1
Rule 58: Deposits for Court Costs
Probate Rule 58.1 Filing Deposits
|Full Administration (suggested deposit)||$300.00|
|Release of Administration with a Will (suggested deposit)||$200.00|
|Release of Administration without a Will (suggested deposit)||$175.00|
|Summary Release of Administration||$120.00|
|Cost per each additional Certificate of Transfer||$12.00|
|Complaint for Adoption||$800.00|
|Each additional child||$300.00|
|Release of Adoption Information||$50.00|
|Name Change Adult or Minor (not including costs of publication)||$200.00|
|Correction or Registration of Birth||$10.00|
|Will for Deposit (testator living)||$25.00|
|Will for Safekeeping (testator deceased)||$50.00|
|Application for Guardianship/Conservatorship||$200.00|
|All filings not requiring judicial action||$50.00|
|All other filings/Re-activations||$150.00|
Probate Rule 58.2 Insufficiency Of Costs Deposit
If the costs deposit is inadequate to cover the costs or fee of any filing, the filing may not be accepted by the Court without payment of the appropriate filing cost or fee. The Court may, at its discretion, require an additional costs deposit in any matter.
Probate Rule 58.3 Computer and Special Project Funds
Pursuant to the Ohio Revised Code, the Court may establish, control and terminate funds, as necessary, in order to pay for projects which assure the efficient operation of the Court.
Rule 59: Wills
Probate Rule 59.1 Death Certificate
This Court will require the filing of a death certificate with any Application to Probate Will.
Rule 60: Application for Letters of Authority to Administer and Notice of Appointment
Probate Rule 60.1 Application for Letters of Authority
This Court will require the filing of death certificate with the Application for Letters of Administration, unless previously filed.
Rule 61: Appraisers
Probate Rule 61.1
Rule 62: Claims Against the Estate
Probate Rule 62.1
Rule 63: Application to Sell Personalty
Probate Rule 63.1
Rule 64: Accounts
Probate Rule 64.1 Costs on Accounts
No Account shall be accepted for filing until all court costs have been paid or secured by adequate deposit.
Probate Rule 64.2 Acceptance of Imaged Checks for Accountings
Imaged checks are acceptable for filing with the Court in all accountings on the condition that a bank official certifies the accuracy of the same.
Probate Rule 64.3 Annual Accounting
Accounts for Guardianships and Trusts shall be due on an annual basis. They shall be due no later than the due date of federal income tax purposes and shall be for the period covered by the tax return.
Rule 65: Land Sales
Probate Rule 65.1
Rule 66: Guardianships
Probate Rule 66.1 Appearance
The ward or alleged incompetent may appear before the Court.
Probate Rule 66.2 Guardian’s Report and Doctor’s Report
At the time the yearly Account is filed, there shall also be filed a report of the Guardian to the Court on a form prescribed by the Court. This report shall also be accompanied by a doctor’s report on the physical condition of the ward, noting any changes from the previous report.
Rule 67: Estates of Minors of Not More Than Ten Thousand Dollars
Probate Rule 67.1
Rule 69: Settlement of Claims of or Against Wards
Probate Rule 69.1 Settlement of Claims of or against Wards
All documents to be filed shall be submitted to the Court for review at least one week prior to the scheduled court appearance for approval of application.
Rule 70: Settlement of Wrongful Death and Survival Claims
Probate Rule 70.1 Settlement of Wrongful Death and Survival Claims
All documents to be filed shall be submitted to the Court for review at least one week prior to the scheduled court appearance for approval of application.
Rule 71: Counsel Fees
Probate Rule 71.1 Counsel Fees
A. The allowance of attorney fees as part of the expense for administering a decedent’s estate, a trust, or a guardianship shall be based upon the actual services performed by the attorney, and the reasonable value of the services. Attorney fees relative to all matters shall be governed by the Code of Professional Responsibility, DR 2-106. The Court has ultimate authority to set attorney fees in any matter.
B. Attorney fees for the administration of a decedent’s estate shall not be paid or advanced from any source until the final account or final closing documents are prepared for filing, unless otherwise approved by the Court upon application. Such application shall contain a statement that the fee is being required in advance of the time permitted by Superintendence Rule 71(B) and shall set forth the reason for requesting the early payment of fees. The application shall be accompanied by a consent as to the amount an the timing of the fees by all beneficiaries who have yet to receive their complete distribution or shall be set for hearing with notice to the non-consenting beneficiaries.
C. Attorney fees may be allowed if there is a written application, as set forth in Appendix A-1, which sets forth the amount requested and will be awarded only after hearing, except as modified herein.
A. If the requested fee is within the guideline fee set forth below in (G), a hearing shall not be required.
B. If the requested fee is not within the guideline fee set forth below in (G), said application for attorney fees shall be set for hearing before the Court. Notice to the beneficiaries affected by payment of fees shall be in the form set forth in Appendix A-2. Any party affected by payment of attorney fees may file a Waiver of Notice of Hearing on Application for Attorney Fees and Consent to Payment of Attorney Fees in the form set forth in Appendix A-3
D. The Court may set a hearing on any Application for Allowance of Attorney Fees regardless of the fact that the beneficiaries have given their consent.
E. Except for good cause shown, attorney fees shall not be allowed to attorneys representing fiduciaries who are delinquent in filing the accounts required by R.C. 2109.30.
F. Where the attorney, law partner or firm associate is appointed as fiduciary, the total administration fee for ordinary administration may not exceed the statutory fiduciary commission plus one-half of the attorney fees. In such cases, a formal hearing will be required regardless of the fee requested unless all affected beneficiaries of the estate have given their written consent, as set forth in Appendix A-4.
G. Attorney fees for the administration of a decedent’s estate as set forth below may serve as a guide in determining fees to be charged to the estate for legal services of an ordinary nature rendered as attorney for the fiduciary in the complete administration of a decedent’s estate. The court does not have, nor is there recognized, any minimum or maximum fees that will automatically be approved by the court. The following is not to be considered or represented to clients as a schedule of minimum or maximum fees to be charged.
a. On the personal property subject to administration and for which the fiduciary is charged as follows:
i. For the first $100,000.00 at a rate of 4.0%;
ii. All above $100,000.00 and not exceeding $400,000.00 at the rate of 3.0%;
iii. All above $400,000.00 at the rate of 2.0%.
b. On real property that is not sold at the rate of 2.0%.
c. On all property not included above:
i. Non-probate real estate at the rate of 1.0% of all such property;
ii. All other non-probate property as follows:
1. For the first $100,000.00 at the rate of 2.0%; and
2. All above $100,000.00 at the rate of 1.0%.
iii. In proceedings where a substantial portion of the assets are titled in joint and survivorship form and/or payable on death accounts, the above guidelines may indicate a fee that is clearly excessive. In such cases, the attorney is expected to disregard the guidelines and to a charge a fee that is reasonable, given the time expended in performing the services.
d. On real estate sold by judicial proceedings, the guideline fee for attorney compensation shall be set by the Court as follows:
i. The first $10,000.00 of the purchase price at the rate of 6.0%; and
ii. All above $10,000.00 at the rate of 2.0%.
e. Attorney fees for services rendered in a relief from administration shall be listed on the back of the Schedule of Assets to be Relieved (form 5.1) as a debt. For fees under $1,000.00, no application is required.
Rule 72: Executor’s and Administrator’s Commission
Probate Rule 72.1
Rule 73: Guardian’s Compensation
Unless otherwise provided by law or ordered by the Court, a guardian may charge for his ordinary services as follows:
- On an annual basis an amount computed in accordance with the schedule of fees established for executors and administrators in O.R.C. 2213.35.
- At the rate established by the Court from the indigent guardianship fund should the ward meet the requirements of indigency. An application and order shall be filed along with a statement of services rendered.
- At the regular hourly rate of the attorney in the case of an indigent ward who later receives an asset. An application and order must be filed along with a statement of services rendered (only after a pre-need funeral is acquired).
Probate Rule 73.2 Fees for Guardians ad Litem
No person other than an attorney at law duly admitted to practice the profession of law in the State of Ohio shall be appointed Guardian ad Litem or Trustee for the Suit in any matter or proceeding in this Court.
The fees allowed a Guardian ad Litem or Trustee for the Suit shall be taxed as part of the costs and shall be as follows:
- $25.00 if the Guardian ad Litem or Trustee for the Suit represents one party;
- $35.00 if the Guardian ad Litem or Trustee for the Suit represents more than one party.
If extraordinary services are rendered by the Guardian ad Litem or Trustee for the Suit, an application for additional fees may be made and will be considered by the Court.
Special application and order may be made in situations not covered by these rules.
Rule 74: Trustee’s Compensation
Probate Rule 74.1 Trustee’s Compensation
A. Except where the instrument creating the trust makes provision for compensation, trustees subject to this Court’s jurisdiction may, upon application and entry, be allowed compensation annually for ordinary services in connection with the administration of each separate trust in accordance with the following schedule:
- Income Fee. Six percent (6%) of the gross income received during the accounting period not exceeding $10,000.00 of gross income, five percent (5%) of the next $10,000.00 of gross income, and four percent (4%) of such gross income exceeding $20,000.00, chargeable to income unless otherwise ordered. As used in this rule, “income” shall mean the sum of income as defined in O.R.C. 1340.03, plus pension benefits, plus net gains from the sale of principal accrued during the trust administration. Assets held by the trustee at the date of appointment are deemed to be principal and not income.
- Principal Fee. $5.00 per thousand for the first $200,000.00 of fair market value, and $4.00 per thousand on the next $200,000.00, and $3.00 per thousand on the balance of the corpus, chargeable to the principal, unless otherwise ordered.
- Principal Distribution Fee. $5.00 per thousand for the first $200,000.00 of fair market value of corpus distributed, and $4.00 per thousand of the next $200,000.00 and $3.00 per thousand of the corpus distributed, unless otherwise ordered.
B. Additional compensation for extraordinary services or allowance for expenses may be granted on application and entry, which shall be set for hearing unless waived by the Court.
Rule 75: Local Rules
Probate Rule 75.1
Rule 76: Exception to the Rules
Probate Rule 76.1
Rule 77: Compliance
Probate Rule 77.1
Rule 78: Probate Division of the Court of Common Pleas Case Management in Decedent’s Estates, Guardianships, and Trusts
Probate Rule 78.1 Case Management and Pre-trial Procedure
For the purpose of insuring the readiness of civil cases in the Probate Division for scheduling conference, formal pretrial conference, and trial, the following procedures shall be in effect:
A. CIVIL ACTIONS
- With the exception of land sale proceeding, a scheduling conference shall be conducted in all civil cases. This conference will be held prior to the scheduling of the trial.
- The scheduling conference shall be conducted within thirty (30) days after the answer day.
- Notice of the scheduling conference shall be given to all counsel of record by mail or telephone by the Court not less than fourteen (14) days prior to the conference. An application for continuance of the conference shall be in writing and filed with the Court in a timely manner.
- All counsel attending the scheduling conference must have full authority to enter into a binding pre-trial order, and the following decisions shall be made.
- A definite schedule for the completion of discovery shall be agreed upon.
- A definite date for exchange of expert witnesses shall be determined.
- A definite date for filing of all motions and pre-trial statements shall be selected.
- The date for the pre-trial shall be set.
- All counsel attending the formal pre-trial must have full authority to enter into a binding final pre-trial order, and clients shall be present or available by telephone. The following shall be submitted at said formal pre-trial:
- Briefs on any legal issues;
- Proposed jury instructions;
- Proposed jury interrogatories.
- Any application for continuance shall be in writing and filed with the Court in a timely manner.
B. LAND SALES
- A pre-trial conference shall be scheduled for all land sale proceedings that have not been concluded within nine (9) months from the date of filing.
- The attorney of record and the fiduciary must attend the pre-trial conference.
- A written status report addressing the efforts being made to sell the real estate shall be submitted at the pre-trial conference.
- Superintendence Rule 65 shall be strictly adhered to.
C. DECEDENT’S ESTATES
- The statutory time for filing an Account (O.R.C. 2109.30) shall be adhered to and the citation procedure (O.R.C. 2109.31) shall be utilized if necessary to gain compliance.
- It shall be the practice of the Court to publish notice of the hearing in an Inventory at least 10 days prior to the hearing date.
- It shall be the practice of the Court to publish notice of the hearing on an Account at least 30 days prior to the hearing date.
- The Court shall set a pre-trial conference within thirty (30) days of the filing of exceptions to the inventory or account.
- At the pre-trial conference, the Court will set the matter for evidentiary hearing.
- All estates remaining open after one year and nine months shall be subject to a status conference. The fiduciary and the attorney shall be present and submit a written status report at said conference.
D. WRONGFUL DEATH SETTLEMENTS
- All hearings shall be held within thirty (30) days of the filing of form 14.0. If a guardian or guardian ad litem is appointed, the hearing shall be held within fifteen (15) days of the appointment.
- The moving party shall and the opposing parties may serve and file a brief written statement in support or opposition of the motion and a list of citations for authorities in support or opposition.
- The movant shall cause the motion to be set for hearing within thirty (30) days after the filing thereof.
- Oral arguments of motions may be permitted on application and proper showing.
F. FAILURE TO COMPLY WITH TIME FRAMES
- The time frames set forth in this rule are case management guidelines only and a failure to follow such time frames in any individual case shall not be grounds for dismissal of the case or suppression of evidence.
Probate Rule 78.2 Fees for Court Appointed Counsel in Mental Illness, Guardianship, and Related Matters
Attorneys appointed by the Court to represent indigent persons in matters involving mental illness and related matters shall be compensated $50.00 per hour for out of court services, and $60.00 per hour for courtroom services, plus necessary expenses.
Attorneys appointed by the Court to represent indigent persons in matters involving guardianships and related matters shall be compensated at the rate of $50.00 per hour for out of court services, and $60.00 per hour for courtroom services, plus necessary expenses.
Probate Rule 78.3 Inmate Marriage Licenses
A deputy of this Court will be dispatched to Marion Correctional Institution and North Central Correctional Institution on the second Monday of each month for the purpose of taking marriage license applications from inmates who have been given permission by the Warden to marry.
If neither party to the marriage is a Marion County resident, the Court will accept a commission to take the application from the Probate Court of the residence of either party. An application for marriage license must be included with the commission. The completed application for marriage license will be returned to the resident county for issuance. A fee of $25.00 will be charges to non-Marion County residents for this service.