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Rule 73 – Probate Division of the Court of Common Pleas

May 14, 2021 | Civil Procedure, Ohio

(A) Applicability. These Rules of Civil Procedure shall apply to proceedings in the probate division of the court of common pleas as indicated in this rule. Additionally, all of the Rules of Civil Procedure, though not specifically mentioned in this rule, shall apply except to the extent that by their nature they would be clearly inapplicable.
(B) Venue. Civ. R. 3(C) shall not apply to proceedings in the probate division of the court of common pleas, which shall be venued as provided by law. Proceedings under Chapters 2101. through 2131. of the Revised Code, which may be venued in the general division or the probate division of the court of common pleas, shall be venued in the probate division of the appropriate court of common pleas.

Proceedings that are improperly venued shall be transferred to a proper venue provided by law and division (B) of this rule, and the court may assess costs, including reasonable attorney fees, to the time of transfer against the party who commenced the action in an improper venue.

(C) Service of summons. Civ. R. 4 through 4.6 shall apply in any proceeding in the probate division of the court of common pleas requiring service of summons.
(D) Service and filing of pleadings and papers subsequent to original pleading. In proceedings requiring service of summons, Civ. R. 5 shall apply to the service and filing of pleadings and papers subsequent to the original pleading.
(E) Service of notice. In any proceeding where any type of notice other than service of summons is required by law or deemed necessary by the court, and the statute providing for notice neither directs nor authorizes the court to direct the manner of its service, notice shall be given in writing and may be served by or on behalf of any interested party without court intervention by one of the following methods:

(1) By delivering a copy to the person to be served;
(2) By leaving a copy at the usual place of residence of the person to be served;
(3) By United States certified or express mail return receipt requested, or by a commercial carrier service utilizing any form of delivery requiring a signed receipt, addressed to the person to be served at the person’s usual place of residence with instructions to the delivering postal employee or to the carrier to show to whom delivered, date of delivery, and address where delivered, provided that the certified or express mail envelope or return of the commercial carrieris not returned showing failure of delivery;
(4) By United States ordinary mail after a returned United States certified or express mail envelope or return of the commercial carrier shows that it was refused;
(5) By United States ordinary mail after a United States certified or express mail envelope is returned with an endorsement stating that it was unclaimed, provided that the United States ordinary mail envelope is not returned by the postal authorities showing failure of delivery;
(6) By publication once each week for three consecutive weeks in some newspaper of general circulation in the county when the name, usual place of residence, or xistence of the person to be served is unknown and cannot with reasonable diligence be ascertained; provided that before publication may be utilized, the person giving notice shall file an affidavit which states that the name, usual place of residence, or existence of the person to be served is unknown and cannot with reasonable diligence be ascertained;
(7) By other method as the court may direct.

Civ.R. 4.2 shall apply in determining who may be served and how particular persons or entities must be served.

(F) Proof of service of notice; when service of notice complete. When service is made through the court, proof of service of notice shall be in the same manner as proof of service of summons.

When service is made without court intervention, proof of service of notice shall be made by affidavit. When service is made by United States certified or express mail or by commercial carrier service, the return receipt which shows delivery shall be attached to the affidavit. When service is made by United States ordinary mail, the prior returned certified or express mail envelope which shows that the mail was refused or unclaimed shall be attached to the affidavit.

Service of notice by United States ordinary mail shall be complete when the fact of mailing is entered of record except as stated in division (E)(5) of this rule. Service by publication shall be complete at the date of the last publication.

(G) Waiver of service of notice. Civ. R. 4(D) shall apply in determining who may waive service of notice.
(H) Forms used in probate practice. Forms used in proceedings in the probate division of the courts of common pleas shall be those prescribed in the rule applicable to standard probate forms in the Rules of Superintendence. Forms not prescribed in such rule may be used as permitted in that rule.

Blank forms reproduced for use in probate practice for any filing to which the rule applicable to specifications for printing probate forms of the Rules of Superintendence applies shall conform to the specifications set forth in that rule.

No pleading, application, acknowledgment, certification, account, report, statement, allegation, or other matter filed in the probate division of the courts of common pleas shall be required to be executed under oath, and it is sufficient if it is made upon the signature alone of the person making it.

(I) Notice of Filing of Judgments. Civ. R. 58(B) shall apply to all judgments entered in the probate division of the court of common pleas in any action or proceeding in which any party other than a plaintiff, applicant, or movant has filed a responsive pleading or exceptions. Notice of the judgment shall be given to each plaintiff, applicant, or movant, to each party filing a responsive pleading or exceptions, and to other parties as the court directs.
(J) Filing with the court defined. The filing of documents with the court, as required by these rules, shall be made by filing them with the probate judge as the ex officio clerk of the court. A court may provide, by local rules adopted pursuant to the Rules of Superintendence, for the filing of documents by electronic means. If the court adopts such local rules, they shall include all of the following:

(1) Any signature on electronically transmitted documents shall be considered that of the attorney or party it purports to be for all purposes. If it is established that the documents were transmitted without authority, the court shall order the filing stricken.
(2) A provision shall specify the days and hours during which electronically transmitted documents will be received by the court, and a provision shall specify when documents received electronically will be considered to have been filed.
(3) Any document filed electronically that requires a filing fee may be rejected by the clerk of court unless the filer has complied with the mechanism established by the court for the payment of filing fees.

Ohio. Civ.R. 73

Effective:July 1, 1970; amended effective July 1, 1971;July 1, 1975;July 1, 1977;July 1, 1980;July 1, 1996;July 1, 1997;July 1, 2001;July 1, 2012; amended effective July 1, 2020.

Staff Note (July 1, 2012 Amendment)

Divisions (E) and (F) are amended so that they are consistent with the 2012 amendments to Civ.R. 4.1 relating to service of process by commercial carrier service and Civ.R. 4.6 relating to returns of service showing “refused” or “unclaimed” when service of process is attempted by U.S. certified or express mail or by commercial carrier service.

Staff Note (July 1, 2001 Amendment)

Civil Rule 73 Probate Division of the Court of Common Pleas

The amendments to this rule were part of a group of amendments that were submitted by the Ohio Courts Digital Signatures Task Force to establish minimum standards for the use of information systems, electronic signatures, and electronic filing. The substantive amendment to this rule was the addition of division (J). Comparable amendments were made to Civil Rule 5, Criminal Rule 12, Juvenile Rule 8, and Appellate Rule 13.

As part of this electronic filing and signature project, the following rules were amended effective July 1, 2001: Civil Rules 5, 11, and 73; Criminal Rule 12; Juvenile Rule 8; and Appellate Rules 13 and 18. In addition, Rule 26 of the Rules of Superintendence for Courts of Ohio was amended and Rule of Superintendence 27 was added to complement the rules of procedure. Superintendence Rule 27 establishes a process by which minimum standards for information technology are promulgated, and requires that courts submit any local rule involving the use of information technology to a technology standards committee designated by the Supreme Court for approval.

Staff Note (July 1, 1997 Amendment)

Rule 73 Probate division of the court of common pleas

Prior to the 1997 amendment, service of process under this rule was permitted only by certified mail. It appears that service of process by express mail, i.e. as that sort of mail is delivered by the United States Postal Service, can always be obtained return receipt requested, and thus could accomplish the purpose of notification equally well as certified mail. Therefore, the amendment provides for this additional option for service.

Division (H) was amended to delete the specific reference to Rule 16 of the Rules of Superintendence for Courts of Common Pleas, and instead a generic reference is made to the applicable rule. This amendment was made because the rules of superintendence were being revised and renumbered in 1997, and the rule number that will apply to probate forms was not known at the time of this amendment.

Other amendments to this rule are nonsubstantive grammatical or stylistic changes.

Staff Note (July 1, 1996 Amendment)

Rule 73(I), Notice of Filing of Judgments

In 1989, Civ. R. 58 was amended to, among other things, make clear that a clerk of courts shall serve signed judgments upon parties. After that amendment, there apparently has been some confusion as to the effect of that amendment upon probate proceedings. The amendment to division (I) makes clear that Civ. R. 58(B) does apply to probate proceedings, in the manner indicated.