§ Civ R 73 Probate division of the court of common pleas

Civ R 73 Probate division of the court of common pleas

(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(B) 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.

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 certified or express mail, addressed to the person to be served at the person's usual place of residence with instructions to forward, return receipt requested, with instructions to the delivering postal employee to show to whom delivered, date of delivery, and address where delivered, provided that the certified or express mail envelope is not returned with an endorsement showing failure of delivery;

(4) By ordinary mail after a certified or express mail envelope is returned with an endorsement showing that it was refused;

(5) By ordinary mail after a certified or express mail envelope is returned with an endorsement showing that it was unclaimed, provided that the ordinary mail envelope is not returned by the postal authorities with an endorsement 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 existence 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 certified or express mail, the certified or express mail return receipt which shows delivery shall be attached to the affidavit. When service is made by 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 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.