This Alert is Part 2 on new laws impacting various practice areas that take effect this spring. Below, we discuss changes enacted by SB 202 and HB 279 in custody, guardianship, probate, and negligence law.
SB 202 takes effect on April 3, 2023. The legislation prohibits a person’s disability from being used as the sole basis to deny or limit custody, parenting time, visitation, adoption, or service as a guardian or foster caregiver by enacting amendments and additions to R.C. 2131.03
As supported by OSBA Estate Planning, Trust and Probate Law Section, SB 202 includes the essential part of SB 199 on guardianship law and includes changes that affect estate and trust law.
Here are highlights noted by Ohio Legislative Service Commission:
Disinterment of bodies
If a decedent has assigned a right of disposition to a representative, then that representative has priority over a surviving spouse to give direction regarding disinterment. If none is named, then the surviving spouse has the right to give direction regarding disinterment.
Prescribes an optional process by which the trustee of an irrevocable trust may conclude the trustee’s administration of the trust.
Requires that if the trustee elects the optional process, before concluding the administration of the trust, the trustee must send both (1) a written notice with specific information outlined in the bill and (2) up to four years of trustee reports to applicable parties, including all beneficiaries of the trust.
Establishes a 45-day window for those receiving the notice and reports to provide an objection to the trustee’s proposed action or any other objection concerning the trustee’s administration of the trust.
Disclosures for settlement of claims for minors
Exempts from disclosure records from proceedings in probate court involving the settlement of claims made by guardians on behalf of a minor.
Presentation of claims against an estate
Revises a creditor’s options to present a claim against an estate after the appointment of an executor or administrator and prior to the filing of a final account or certificate of termination to include presenting the claim to the executor’s or administrator’s counsel and to the probate court.
Expands the definition of devise under the anti-lapse statute in the Probate Law to include a primary devise.
Expands the definition of beneficiary under the anti-lapse statute in the Ohio Trust Code to include a beneficiary of a primary gift.
Specifies that the new definitions are to be applied retroactively to the fullest extent possible, except in situations in which real property has been transferred and recorded.
Technical changes relating to effective dates
Clarifies the effective date for certain changes made to Ohio Trust Law regarding exceptions to the rule against perpetuities in H.B. 701 of the 122nd General Assembly and H.B. 479 of the 129th General Assembly.
For in-depth information on the guardianship changes, OSBA offers an online CLE on Ohio Guardianship Law Update SB199/Amended to SB 202. Click here to learn more and register.
HB 279 takes effect on April 4, 2023 to amend Sections 2125.02, 2125.03, and 2125.05 of the Ohio Revised Code to revise the law regarding wrongful death claims. The legislation specifies that the changes apply only to persons who died on or after the effective date.
Wrongful death actions are revised, as summarized by Legislative Service Commission to:
- Generally limit the time within which the extended family of a deceased person are entitled to notice of a settlement hearing for a wrongful death action to two years following the alleged wrongful death.
- Allow extended family members to preserve their claim beyond the general, two-year period by filing a notice of claim with the probate court.
- Clarify that immediate family (i.e., the surviving spouse, children, and parents) are entitled to notice of any such settlement hearing, regardless of when it occurs.
For detailed information on the Updates to Wrongful Death Beneficiary Claims and Notice Provisions to HB 279, plan to attend the OSBA Online CLE on that topic. Click here to visit the OSBA CLE Store to register.
If there are questions or comments, please feel free to contact us. At OBLIC, we’re here to help!
|Gretchen K. Mote, Esq.
Director of Loss Prevention
Ohio Bar Liability Insurance Co.
|Merisa K. Bowers, Esq.
Loss Prevention Counsel
Ohio Bar Liability Insurance Co.
This information is made available solely for loss prevention purposes, which may include claim prevention techniques designed to minimize the likelihood of incurring a claim for legal malpractice. This information does not establish, report, or create the standard of care for attorneys. The material is not a complete analysis of the topic and should not be construed as providing legal advice. Please conduct your own appropriate legal research in this area. If you have questions about this email’s content and are an OBLIC policyholder, please contact us using the information above.