Home > Departments & Agencies > Legal Resources > Probate Court > Welcome > Law and Procedure

Law and Procedure

Law And Procedure In The Probate Court

The Probate Court (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, a 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/she 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-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. Note: In Ohio's less populous counties, duties of a probate court may be handled by a judge who is both probate judge and juvenile judge, or, in the smallest of Ohio's counties, one common pleas judge may handle all matters, including probate.

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 certain 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 In 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.

Appointments To Boards And Commissioners

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 are appointed by the probate 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.