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Legal professionals discuss recent changes to Ohio probate law
SHERRY KARABIN
Legal News Reporter
Published: October 1, 2021
A new law has changed the rules governing a number of Ohio probate court procedures, including name conformity actions.
Ohio House Bill 7, which officially became law on Aug. 17, streamlines the process for Ohioans who want to make their birth certificates conform to the name on their other legal documents without going through a name change, said Summit County Probate Court Judge Elinore Marsh Stormer.
“For example, if a person has been known by one name throughout their life but discovers that the birth certificate lists a different name, this new process allows them to make the documents conform,” Judge Stormer said.
Judge Stormer said the law shortens the residency requirement for filing an application for either a name change or name conformity from 1 year to 60 days, allows judges to waive the hearing rule if the documents submitted establish the clear right to the change and eliminates the requirement for publication of the application for the change or conformity.
The rules for minors are a bit different and generally require parental consent in order to avoid a hearing.
“Previously, an individual would have to post the court, case number, date and hearing time in an official legal publication to allow for any objections to the request,” said Judge Stormer. “The old law did allow judges to waive the notification requirement if the individual’s safety was at risk, but the new law takes things a step further, speeding up the process and reducing the cost.”
Judge Stormer said while the name conformity process eliminates the confusion caused by discrepancies between a person’s birth certificate and other legal documents, it is not the same as legally changing one’s name.
“A name change erases the current name and is effective going forward,” said Judge Stormer. “It does require the applicant to change the name on all of their documents––birth certificate, social security, driver’s license etc.
“A name conformity anticipates that the applicant has many documents with the preferred name, but not all. It allows the applicant to make all documents show the same name, so that all conform without using the prior process, which required a name change in order to get a birth certificate to show the same name,” said Judge Stormer.
“Probate court had numerous applications for a name change when an applicant already had documents showing for example, the name Joe Stormer but his birth certificate listed him as James Stormer,” she said.
“The requirement that each person have travel compliant documents makes the name conformity process a simple method to make the name on each document the same.”
Portage County elder law attorney Andrew Popp said the new law makes it more difficult for applicants to provide incorrect or falsified statements about their criminal history.
“Probate court judges are now able to require applicants to submit to criminal background checks,” said Popp, an associate at Weisenburger Law Offices in Ravenna. “Previously applicants only needed to note any criminal history in their applications. Now they are required to submit a sworn affidavit to that effect, which impacts the penalties involved for incorrect or falsified statements.”
The new law also allows a nurse practitioner to testify in lieu of a psychiatrist or psychologist at mental health competency hearings.
“When a person with a mental illness is ‘probated,’ a treatment provider, either a psychiatrist or psychologist had to testify,” said Judge Stormer.
She said the requirement often caused delays since many counties in Ohio don’t have any psychiatrists or psychologists or have a small number of them.
“The new change permits the testimony of an advanced practice nurse,” Judge Stormer said. “The rights to contest the commitment remain in place, but the law now speeds up the timeline for those who might be probated or civilly committed to the court because the hearing does not have to be postponed until a psychiatrist or psychologist is available to testify.”
The Aug. 17 changes also expand and clarify some of the powers given to court-appointed guardians, allowing them to modify a ward’s beneficiary designations, exercise spousal survivorship rights and create, amend or revoke any revocable trusts set up by the ward.
“Previously, a ward who lacked mental capacity had no way to accomplish this,” said Popp. “The result is that all the assets owned by the ward at his or her passing would be required to go through the probate process.
“This increases the cost, time and inconvenience of administering the ward’s estate. If a guardian sets up a ward’s accounts to pass outside of probate, not only will it make it easier, faster and cheaper to administer, it will also help to alleviate the burden on our overloaded judicial system.”
In addition, the law now allows a nonprofit corporation to be appointed as guardian of a ward’s person as well as the individual’s estate.
“Guardianship can be established over finances (guardian of the estate) or personal and medical decisions (guardian of the person),” said Popp.
One of the difficulties with any guardianship, Popp said is finding a person to serve who is competent, diligent and otherwise available to act as needed.
“A solution to this issue is to have a nonprofit corporation serve as guardian of a ward,” said Popp.
“Under previous law, a nonprofit corporation could only serve as guardian over the finances of a ward (guardian of the estate), but not as guardian of the person,” said Popp. “House Bill 7 changed this and a nonprofit corporation is permitted to be the guardian of a person and can make appropriate lifestyle and personal decisions.
“This may help to simplify matters for wards that do not have friends or family who are willing and eligible to serve as guardians for them.”
The rules for organ donation have also changed. Prior to the enactment of the new law, Ohio residents used to be able to specify details regarding organ donation in a living will, last will and testament or through Ohio’s Organ Donor Registry.
“Now organ donations specified in a living will or last will and testament will no longer be honored under the new law,” he said. “If you want to be an organ donor, you need to complete the necessary paperwork with the Bureau of Motor of Vehicles and enroll with Ohio’s donor registry.”
Since many of the new rules and procedures are complex, Popp is advising those who have questions about how they or a family member may be affected to contact a probate or elder law attorney to determine whether changes need to be made to existing documents or arrangements.
“There’s no substitute for sitting down with a qualified attorney,” said Popp.