Probate Court


HISTORY OF THE PROBATE COURT

The term “probate” comes from the Latin word probatio, meaning “to prove,” wherein matters in early English religious courts were proven before an ecclesiastical judge. Eary American probate courts may be traced back to English Courts of Chancery and ecclesiastical or religious courts, which had jurisdiction over the probate of wills, administration of estates, and guardianships.

The first probate court in the United States was established in Massachusetts in 1784. Similar courts were subsequently established in other states under the name of surrogate, orphan courts, or courts of the ordinary. The Northwest Ordinance of 1787 provided for the first probate judge and court in the Ohio Territory. Under the first Ohio Constitution written in 1802, the court of common pleas had exclusive jurisdiction of probate matters. The Constitution of 1851 removed probate matters from the jurisdiction of common pleas courts and created in each county a separate probate court. Subsequent amendments to the Constitution in 1912, 1951, 1968, and 1973, and changes in the codified law in 1932 and 1976, have made the probate court what it is today: a special division of the court of common pleas. Each of Ohio’s 88 counties has a probate division of its court of common pleas.

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JURISDICTION OF THE COURT

The Ohio Revised Code places over two hundred separate duties upon the probate court. Those duties range from issuing marriage licenses to overseeing testamentary trusts valued in millions of dollars. The following is a brief outline and description of some of the duties of the court.

ADMINISTRATION OF ESTATES

Estate administration involves the court overseeing transfer of a decedent’s probatable assets to his beneficiaries and heirs. The court accomplishes this task by appointing a fiduciary, either an executor or an administrator, who collects the assets, pays any outstanding debts and then distributes the remaining assets to those who are entitled to receive them. The court supervises the actions of the fiduciary by requiring a bond, when necessary, and the filing of various documents, including an inventory and an accounting.

WILLS

The Probate Court is responsible for testamentary wills as follows:

Safekeeping – Prior to the death of the testator (maker), for a small filing fee, a will may be deposited with the probate court for safekeeping.

Probate – On the death of the testator, a will is admitted to probate by the court, Once admitted the will may control estate administration and the distribution of the decedent’s assets. If no will is admitted to probate, the Ohio Revised Code will control the administration and distribution of the decedent’s assets.

Will Contest – If a will is contested, a trial is conducted by the court to determine the validity of the will. If requested, a trial by jury is mandatory.

GUARDIANSHIPS

The court may appoint, after hearing and investigation, a guardian for a minor or for an adult who is found to be incompetent to take proper care of himself or his property. A guardian, with court supervision, is responsible for making personal and/or financial decisions for the ward. Court supervision is accomplished, in part, through the filing of reports and accountings by the guardian. Both a minor and an adult ward have a number of rights and protections to insure against an unnecessary or ineffective guardianship, including, for the adult ward, the right to be represented by an attorney.

CONSERVATORSHIPS

The court grants a conservatorship when the conservatee, the person who is the subject of the conservatorship, consents. A conservatee must be mentally competent, but physically infirm. The laws and procedures of guardianship, may apply to conservatorships.

MENTAL ILLNESS AND MENTAL RETARDATION

Civil involuntary commitments of the mentally ill and retarded to state hospitals are the responsibility of the probate court. The court is required to hold evidentiary hearings to determine the appropriateness of commitment and the length and place of treatment. Since the involuntary commitment involves the loss of liberty, the court insures protection of an individual’s rights by providing legal representations at each step of the commitment process.

ADOPTIONS

All adoptions must be approved by the probate court before they become final. Person or persons wishing to adopt are required to submit to an investigation of their living environment by professionally-trained personnel to insure their suitability as parents.

BIRTH CERTIFICATES, REGISTRATION, AND CORRECTION

If a birth has not been recorded, or if a birth certificate has been lost, destroyed, or improperly or inaccurately recorded, the probate court has the power, upon application, to require recording, or correction of the certificate.

Information on births before 1908 is available from the probate court. For individuals born prior to 1908, a certified certificate of birth may be obtained from the probate court.

CHANGES OF NAME

Applications for legal change of name are filed in the probate court. After publishing notice and hearing, the court, if reasonable and proper cause exists, may grant a name change.

MARRIAGE LICENSES

The probate court has exclusive jurisdiction to issue marriage licenses. After review of the application, a deputy clerk will issue a license for marriage. Over 100,000 marriage licenses are issued annually by Ohio Probate Courts.

LEGITIMATIONS

Not in Probate Court as of 1-1-1998

TESTAMENTARY AND INTER VIVOS TRUSTS

The probate court is responsible for insuring that the terms of testamentary trusts (those created by a will) are complied with. This is accomplished, in part, through periodic accountings to the court. Questions involving interpretation and enforcement of both testamentary and inter vivos trusts (those created during a person’s lifetime) may be submitted to court.

APPOINTMENTS TO BOARDS AND COMMISSIONS

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 and Facilities Review 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.

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.

Birth and death records are available from 1867 to 1908. Prior to 1867, no records were recorded in this county. After 1908, the records are maintained at the Board of Health, 205 N 7th St, Zanesville, OH 43701.

Will and estate records are available from 1804 to the present.

Marriage license are available from 1804 to the present.

Naturalization records are available for the early 1800’s.

Some information might be available through estate records, but this type of research cannot be handled through our Court due to lack of time and personnel – UNLESS YOU KNOW THE APPROXIMATE DATE AND EXACT NAMES. We do not check for names of ancestors. You may request information by emailing a request to probate@muskingumcounty.org or mail a request to the Court with a self addressed stamped envelope. The Court will not mail any copies, prior to receiving payment.

If you wish research work done, you may write to the Muskingum County Genealogical Society, P.O. Box 2427, Zanesville, Ohio 43702-2427 and they will furnish you with the names of researchers in this area.