Chapter 2107: WILLS

2107.01 Will construed.

As used in Chapters 2101. to 2131. of the Revised Code :

(A) "Will" includes codicils to wills admitted to probate, lost, spoliated, or destroyed wills, and instruments admitted to probate under section 2107.081 of the Revised Code, but "will" does not include inter vivos trusts or other instruments that have not been admitted to probate.

(B) "Testator" means any person who makes a will.

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-08-1992

2107.011 Inheritance and bequest defined.

Except when the intent of the testator clearly is to the contrary, the following rules of construction shall apply in interpreting the terms "inheritance" and "bequest" :

(A) The term "inheritance," in addition to its meaning at common law or under any other section or sections of the Revised Code, includes any change of title to real property by reason of the death of the owner of that real property, regardless of whether the owner died testate or intestate.

(B) The term "bequest," in addition to its meaning at common law or under any other section or sections of the Revised Code, includes any testamentary disposition of real property and any testamentary disposition of a vendor's interest in a land installment contract.

(C) The terms "inheritance" and "bequest," as defined in the rules of construction set forth in divisions (A) and (B) of this section, apply to the interest in, the title to, or both the interest in and the title to, any real property to which a fiduciary succeeds by reason of the death of the prior holder of that interest, title, or interest and title, regardless of whether the prior holder died testate or intestate.

Effective Date: 06-23-1994

2107.02 Who may make will.

A person who is eighteen years of age or older, of sound mind and memory, and not under restraint may make a will.

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 08-10-1965

2107.03 Method of making will.

Except oral wills, every will shall be in writing, but may be handwritten or typewritten. The will shall be signed at the end by the testator or by some other person in the testator's conscious presence and at the testator's express direction . The will shall be attested and subscribed in the conscious presence of the testator, by two or more competent witnesses, who saw the testator subscribe, or heard the testator acknowledge the testator's signature.

For purposes of this section, "conscious presence" means within the range of any of the testator's senses, excluding the sense of sight or sound that is sensed by telephonic, electronic, or other distant communication.

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-01-1953; 2008 SB302 09-01-2008

2107.04 Agreement to make a will.

No agreement to make a will or to make a devise or bequest by will shall be enforceable unless it is in writing. The agreement shall be signed by the maker or by some other person at the maker's express direction. If signed by a person other than the maker, the instrument shall be subscribed by two or more competent witnesses who heard the maker acknowledge that it was signed at the maker's direction.

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-01-1953

2107.05 Incorporation by reference.

An existing document, book, record, or memorandum may be incorporated in a will by reference, if referred to as being in existence at the time the will is executed. That document, book, record, or memorandum shall be deposited in the probate court when the will is probated or within thirty days after the will is probated, unless the court grants an extension of time for good cause shown. A copy may be substituted for the original document, book, record, or memorandum if the copy is certified to be correct by a person authorized to take acknowledgments .

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-01-1953

2107.06 Age requirement for witnessing will.

No person under eighteen years of age shall witness a will executed pursuant to section 2107.03 of the Revised Code or an agreement to make a will or to make a devise or bequest by will pursuant to section 2107.04 of the Revised Code.

Effective Date: 07-23-2002

2107.07 Deposit of will.

A will may be deposited by the testator, or by some person for the testator, in the office of the judge of the probate court in the county in which the testator lives. That will shall be safely kept until delivered or disposed of as provided by section 2107.08 of the Revised Code. The judge, on being paid the fee of five dollars, shall receive, keep, and give a certificate of deposit for the will.

Every will that is so deposited shall be enclosed in a sealed envelope that shall be indorsed with the name of the testator. The judge shall indorse on the envelope the date of delivery and the person by whom the will was delivered. The envelope may be indorsed with the name of a person to whom it is to be delivered after the death of the testator. The will shall not be opened or read until delivered to a person entitled to receive it, until the testator files a complaint in the probate court for a declaratory judgment of the validity of the will pursuant to section 2107.081 of the Revised Code, or until otherwise disposed of as provided in section 2107.08 of the Revised Code.

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 01-01-1979

2107.08 Delivery of deposited will.

During the lifetime of a testator, the testator's will, deposited according to section 2107.07 of the Revised Code, shall be delivered only to the testator, to some person authorized by the testator by a written order, or to a probate court for a determination of its validity when the testator so requests. After the testator's death, the will shall be delivered to the person named in the indorsement on the envelope of the will, if there is a person named who demands it. If the testator has filed a complaint in the probate court for a judgment declaring the validity of the will pursuant to section 2107.081 of the Revised Code and the court has rendered the judgment, the probate judge with possession shall deliver the will to the proper probate court as determined under section 2107.11 of the Revised Code, upon the death of the testator, for probate.

If no person named in the indorsement demands the will and it is not one that has been declared valid pursuant to section 2107.084 of the Revised Code, it shall be publicly opened in the probate court within one month after notice of the testator's death and retained in the office of the probate judge until offered for probate. If the jurisdiction belongs to any other probate court, the will shall be delivered to the person entitled to its custody, to be presented for probate in the other court. If the probate judge who opens the will has jurisdiction of it, the probate judge immediately shall give notice of its existence to the executor named in the will or, if any, to the persons holding a power to nominate an executor as described in section 2107.65 of the Revised Code, or, if it is the case, to the executor named in the will and to the persons holding a power to nominate a coexecutor as described in that section. If no executor is named and no persons hold a power to nominate an executor as described in that section, the probate judge shall give notice to other persons immediately interested.

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-08-1992

2107.081 Complaint for judgment declaring validity of will.

(A) A person who executes a will allegedly in conformity with the laws of this state may file a complaint in the probate court of the county in which the person is domiciled if the person is domiciled in this state or in the probate court of the county in which any of the person's real property is located if the person is not domiciled in this state for a judgment declaring the validity of the will.

The complaint may be filed in the form determined by the probate court of the county in which it is filed.

The complaint shall name as parties defendant all persons named in the will as beneficiaries, and all of the persons who would be entitled to inherit from the testator under Chapter 2105. of the Revised Code had the testator died intestate on the date the complaint was filed.

For the purposes of this section, "domicile" shall be determined at the time of filing the complaint with the probate court.

(B) The failure of a testator to file a complaint for a judgment declaring the validity of a will the testator has executed shall not be construed as evidence or an admission that the will was not properly executed pursuant to section 2107.03 of the Revised Code or any prior law of this state in effect at the time of execution or as evidence or an admission that the testator did not have the requisite testamentary capacity or was under any restraint.

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 01-01-1979

2107.082 Service of process in action for judgment declaring validity of will.

Service of process in an action authorized by section 2107.081 of the Revised Code shall be made on every party defendant named in the complaint filed under that section by the following methods:

(A) By certified mail, or any other valid personal service permitted by the Rules of Civil Procedure, if the party is an inhabitant of this state or is found within this state;

(B) By certified mail, with a copy of the summons and complaint, to the party at the party's last known address or any other valid personal service permitted by the Rules of Civil Procedure, if the party is not an inhabitant of this state or is not found within this state;

(C) By publication, according to Civil Rule 4.4, in a newspaper of general circulation published in the county where the complaint was filed, for three consecutive weeks, if the address of the party is unknown, if all methods of personal service permitted under division (B) of this section were attempted without success, or if the interest of the party under the will or in the estate of the testator should the will be declared invalid is unascertainable at that time.

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 01-01-1979

2107.083 Hearing on complaint for judgment declaring validity of will.

When a complaint is filed pursuant to section 2107.081 of the Revised Code, the probate court shall conduct a hearing on the validity of the will. The hearing shall be adversary in nature and shall be conducted pursuant to section 2721.10 of the Revised Code, except as otherwise provided in sections 2107.081 to 2107.085 of the Revised Code.

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 01-01-1979

2107.084 Declaration of validity - revoking or modifying a will declared valid.

(A) The probate court shall declare the will valid if, after conducting a proper hearing pursuant to section 2107.083 of the Revised Code, it finds that the will was properly executed pursuant to section 2107.03 of the Revised Code or under any prior law of this state that was in effect at the time of execution and that the testator had the requisite testamentary capacity and was not under any restraint.

Any judgment under this section declaring a will valid is binding in this state as to the validity of the will on all facts found, unless provided otherwise in this section, section 2107.33 of the Revised Code, or division (B) of section 2107.71 of the Revised Code, and, if the will remains valid, shall give the will full legal effect as the instrument of disposition of the testator's estate, unless the will has been modified or revoked according to law.

(B) Any declaration of validity issued as a judgment pursuant to this section shall be sealed in an envelope along with the will to which it pertains, and filed by the probate judge or the probate judge's designee in the offices of that probate court. The filed will shall be available during the testator's lifetime only to the testator. If the testator removes a filed will from the possession of the probate judge, the declaration of validity rendered under division (A) of this section no longer has any effect.

(C) A testator may revoke or modify a will declared valid and filed with a probate court pursuant to this section by filing a complaint in the probate court in possession of the will and asking that the will be revoked or modified. The complaint shall include a document executed pursuant to sections 2107.02 and 2107.03 of the Revised Code, and shall name as parties defendant those persons who were parties defendant in any previous action declaring the will valid, those persons who are named in any modification as beneficiaries, and those persons who would be entitled because of the revocation or modification, to inherit from the testator under Chapter 2105. of the Revised Code had the testator died intestate on the date the complaint was filed. Service of the complaint and process shall be made on these parties by the methods authorized in section 2107.082 of the Revised Code.

Unless waived by all parties, the court shall conduct a hearing on the validity of the revocation or modification requested under this division in the same manner as it would on any initial complaint for a judgment declaring a will to be valid under this section. If the court finds that the revocation or modification is valid under the procedure described in division (A) of this section, the revocation or modification shall take full effect and be binding and shall revoke the will or modify it to the extent of the valid modification. The revocation or modification, the judgment declaring it valid, and the will itself shall be sealed in an envelope and filed with the probate court and shall be available during the testator's lifetime only to the testator.

(D) A will that has been declared valid under division (A) of this section and is in the possession of the probate judge may be modified by codicil if the codicil is declared valid by the same procedure as the will. A testator may revoke a will by any method permitted under section 2107.33 of the Revised Code.

(E) A declaration of validity of a will, of a codicil to a will previously declared valid, or of a revocation or modification of a will previously determined to be valid that is given under division (A) or (C) of this section, whichever is applicable, is not subject to collateral attack, except by a person and in the manner specified in division (B) of section 2107.71 of the Revised Code, but is appealable subject to the terms of Chapter 2721. of the Revised Code.

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 01-01-1979

2107.085 Evidence and effect of declaration.

The finding of facts by a probate court in a proceeding brought under sections 2107.081 to 2107.085 of the Revised Code is not admissible as evidence in any proceeding other than one brought to determine the validity of a will.

The determination or judgment rendered in a proceeding under those sections is not binding upon the parties to that proceeding in any action not brought to determine the validity of a will.

The failure of a testator to file a complaint for a judgment declaring the validity of a will the testator has executed is not admissible as evidence in any proceeding to determine the validity of that will or any other will executed by the testator.

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 01-01-1979

2107.09 Who may enforce production of a will.

(A) If real property is devised or personal property is bequeathed by a will, the executor or any interested person may cause the will to be brought before the probate court of the county in which the decedent was domiciled. By judicial order, the court may compel the person having the custody or control of the will to produce it before the court for the purpose of being proved.

If the person having the custody or control of the will intentionally conceals or withholds it or neglects or refuses to produce it for probate without reasonable cause, the person may be committed to the county jail and kept in custody until the will is produced. The person also shall be liable to any party aggrieved for the damages sustained by that neglect or refusal.

Any judicial order issued pursuant to this section may be issued into any county in the state and shall be served and returned by the officer to whom it is delivered.

The officer to whom the process is delivered shall be liable for neglect in its service or return in the same manner as sheriffs are liable for neglect in not serving or returning a capias issued upon an indictment.

(B) In the case of a will that has been declared valid pursuant to section 2107.084 of the Revised Code, the probate judge who made the declaration or who has possession of the will shall cause the will and the judgment declaring validity to be brought before the proper probate court as determined by section 2107.11 of the Revised Code at a time after the death of the testator. If the death of the testator is brought to the attention of the probate judge by an interested party, the judge shall cause the will to be brought before the proper probate court at that time.

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 01-01-1979

2107.10 Effect of withholding will.

(A) No property or right, testate or intestate, shall pass to a beneficiary named in a will who knows of the existence of the will for one year after the death of the testator and has the power to control it and, without reasonable cause, intentionally conceals or withholds it or neglects or refuses within that one year to cause it to be offered for or admitted to probate. The property devised or bequeathed to that beneficiary shall descend to the heirs of the testator, not including any heir who has concealed or withheld the will.

(B) No property or right, testate or intestate, passes to a beneficiary named in a will when the will was declared valid and filed with a probate judge pursuant to section 2107.084 of the Revised Code, the declaration and filing took place in a county different from the county in which the will of the testator would be probated under section 2107.11 of the Revised Code, and the named beneficiary knew of the declaration and filing and of the death of the testator and did not notify the probate judge with whom the will was filed. This division does not preclude a named beneficiary from acquiring property or rights from the estate of the testator for failing to notify a probate judge if the named beneficiary reasonably believes that the judge has previously been notified of the testator's death.

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 01-01-1979

2107.11 Jurisdiction to probate.

(A) A will shall be admitted to probate:

(1) In the county in this state in which the testator was domiciled at the time of the testator's death;

(2) In any county of this state where any real property or personal property of the testator is located if, at the time of the testator's death, the testator was not domiciled in this state, and provided that the will has not previously been admitted to probate in this state or in the state of the testator's domicile;

(3) In the county of this state in which a probate court rendered a judgment declaring that the will was valid and in which the will was filed with the probate court.

(B) For the purpose of division (A)(2) of this section, intangible personal property is located in the place where the instrument evidencing a debt, obligation, stock, or chose in action is located or if there is no instrument of that nature where the debtor resides.

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 01-01-1979

2107.12 Contest of jurisdiction.

When a will is presented for probate or for a declaratory judgment of its validity pursuant to section 2107.081 of the Revised Code, persons interested in its outcome may contest the jurisdiction of the court to entertain the application. Preceding a hearing of a contest as to jurisdiction, all parties named in such will as legatees, devisees, trustees, or executors shall have notice thereof in such manner as may be ordered by the court.

When such contest is made, parties may call witnesses and shall be heard upon the question involved. The decision of the court as to its jurisdiction may be reviewed on error.

Effective Date: 01-01-1979

2107.13, 2107.14 [Repealed].

Effective Date: 05-31-1990

2107.15 Witness a devisee or legatee.

If a devise or bequest is made to a person who is one of only two witnesses to a will, the devise or bequest is void. The witness shall then be competent to testify to the execution of the will, as if the devise or bequest had not been made. If the witness would have been entitled to a share of the testator's estate in case the will was not established, the witness takes so much of that share that does not exceed the bequest or devise to the witness. The devisees and legatees shall contribute for that purpose as for an absent or afterborn child under section 2107.34 of the Revised Code.

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 01-01-1976

2107.16 Will proved in certain cases.

(A) When offered for probate, a will may be admitted to probate and allowed upon such proof as would be satisfactory, and in like manner as if an absent or incompetent witness were dead:

(1) If it appears to the probate court that a witness to such will has gone to parts unknown;

(2) If the witness was competent at the time of attesting its execution and afterward became incompetent;

(3) If testimony of a witness cannot be obtained within a reasonable time.

(B) When offered for probate, a will shall be admitted to probate and allowed when there has been a prior judgment by a probate court declaring that the will is valid pursuant to section 2107.084 of the Revised Code, if the will has not been removed from the possession of the probate judge and has not been modified or revoked under division (C) or (D) of section 2107.084 of the Revised Code.

Effective Date: 01-01-1979

2107.17 Depositions may be taken by commission.

When a witness to a will, or other witness competent to testify at a probate or declaratory judgment proceeding, resides out of its jurisdiction, or resides within it but is infirm and unable to attend court, the probate court may issue a commission with the will annexed directed to any suitable person. In lieu of the original will, the probate court, in its discretion, may annex to the commission a photocopy of the will or a copy of the will made by any similar process. The person to whom the commission is directed shall take the deposition or authorize the taking of the deposition of the witness as provided by the Rules of Civil Procedure. The testimony, certified and returned, shall be admissible and have the same effect in the proceedings as if taken in open court.

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 01-01-1979

2107.18 Admission of will to probate.

The probate court shall admit a will to probate if it appears from the face of the will, or if the probate court requires, in its discretion, the testimony of the witnesses to a will and it appears from that testimony, that the execution of the will complies with the law in force at the time of the execution of the will in the jurisdiction in which it was executed, with the law in force in this state at the time of the death of the testator, or with the law in force in the jurisdiction in which the testator was domiciled at the time of the testator's death.

The probate court shall admit a will to probate when there has been a prior judgment by a probate court declaring that the will is valid, rendered pursuant to section 2107.084 of the Revised Code, if the will has not been removed from the possession of the probate judge and has not been modified or revoked under division (C) or (D) of section 2107.084 of the Revised Code.

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 05-31-1990

2107.181 Interlocutory orders - rehearing.

If it appears that the instrument purporting to be a will is not entitled to admission to probate, the court shall enter an interlocutory order denying probate of the instrument, and shall continue the matter for further hearing. The court shall order that not less than ten days' notice of the further hearing be given by the applicant, the executor named in the instrument, the persons holding a power to nominate an executor as described in section 2107.65 of the Revised Code, or a commissioner appointed by the court, to all persons named in the instrument as legatees, devisees, beneficiaries of a trust, trustees, executors, or persons holding a power to nominate an executor, coexecutor, successor executor, or successor coexecutor as described in section 2107.65 of the Revised Code. Upon further hearing, witnesses may be called, subpoenaed, examined, and cross-examined in open court or by deposition, and their testimony reduced to writing and filed in the same manner as in hearings for the admission of wills to probate. Thereupon, the court shall revoke its interlocutory order denying probate to the instrument, and admit it to probate, or enter a final order refusing to probate it. A final order refusing to probate the instrument may be reviewed on appeal.

Effective Date: 10-14-1983

2107.19 Notice of admission of will to probate.

(A)

(1) Subject to divisions (A)(2) and (B) of this section, when a will has been admitted to probate, the fiduciary for the estate or another person specified in division (A)(4) of this section shall, within two weeks of the admission of the will to probate, give a notice as described in this division and in the manner provided by Civil Rule 73(E) to the surviving spouse of the testator, to all persons who would be entitled to inherit from the testator under Chapter 2105. of the Revised Code if the testator had died intestate, and to all legatees and devisees named in the will. The notice shall mention the probate of the will and, if a particular person being given the notice is a legatee or devisee named in the will, shall state that the person is named in the will as beneficiary. A copy of the will admitted to probate is not required to be given with the notice.

(2) A person entitled to be given the notice described in division (A)(1) of this section may waive that right by filing a written waiver of the right to receive the notice in the probate court. The person may file the waiver of the right to receive the notice at any time prior to or after the will has been admitted to probate.

(3) The fact that the notice described in division (A)(1) of this section has been given, subject to division (B) of this section, to all persons described in division (A)(1) of this section who have not waived their right to receive the notice, and, if applicable, the fact that certain persons described in that division have waived their right to receive the notice in accordance with division (A)(2) of this section, shall be evidenced by a certificate that shall be filed in the probate court in accordance with division (A)(4) of this section.

(4) The notice of the admission of the will to probate required by division (A)(1) of this section and the certificate of giving notice or waiver of notice required by division (A)(3) of this section shall be given or filed by the fiduciary for the estate or by the applicant for the admission of the will to probate, the applicant for a release from administration, any other interested person, or the attorney for the fiduciary or for any of the preceding persons. The certificate of giving notice shall be filed not later than two months after the appointment of the fiduciary or, if no fiduciary has been appointed, not later than two months after the admission of the will to probate, unless the court grants an extension of that time. Failure to file the certificate in a timely manner shall subject the fiduciary or applicant to the citation and penalty provisions of section 2109.31 of the Revised Code.

(B) The fiduciary or another person specified in division (A)(4) of this section is not required to give a notice pursuant to division (A)(1) of this section to persons who have been notified of the application for probate of the will or of a contest as to jurisdiction or to persons whose names or places of residence are unknown and cannot with reasonable diligence be ascertained, and a person authorized by division (A)(4) of this section to give notice shall file in the probate court a certificate to that effect.

Effective Date: 04-08-2004

2107.20 Filing and recording of will - certified copy.

When admitted to probate every will shall be filed in the office of the probate judge and recorded, together with any testimony or prior judgment of a probate court declaring the will valid, by the judge or the clerk of the probate court in a book to be kept for that purpose.

A copy of the recorded will, with a copy of the order of probate annexed to the copy of the recorded will, certified by the judge under seal of the judge's court, shall be as effectual in all cases as the original would be, if established by proof.

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 01-01-1979

2107.21 Recorded in each county where real property is situated.

If real property devised by will is situated in any county other than that in which the will is proved, declared valid, or admitted to probate, an authenticated copy of the will and the order of probate or the judgment declaring validity shall be admitted to the record in the office of the probate judge of each county in which the real property is situated upon the order of that judge. The authenticated copy shall have the same validity in the county in which the real property is situated as if probate had been had in that county.

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 01-01-1979

2107.22 Probate of will of later date.

(A)

(1)

(a) When a will has been admitted to probate by a probate court and another will of later date is presented to the same court for probate, notice of the will of later date shall be given to those persons required to be notified under section 2107.19 of the Revised Code, and to the fiduciaries and beneficiaries under the will of earlier date. The probate court may admit the will of later date to probate the same as if no earlier will had been so admitted if it appears from the face of the will of later date, or if an interested person makes a demand as described in division (A)(1)(b) of this section and it appears from the testimony of the witnesses to the will given in accordance with that division, that the execution of the will complies with the law in force at the time of the execution of the will in the jurisdiction in which it was executed, with the law in force in this state at the time of the death of the testator, or with the law in force in the jurisdiction in which the testator was domiciled at the time of the testator's death.

(b) Upon the demand of a person interested in having a will of later date admitted to probate, the probate court shall cause at least two of the witnesses to the will of later date, and any other witnesses that the interested person desires to have appear, to come before the probate court and provide testimony. If the interested person so requests, the probate court shall issue a subpoena to compel the presence of any such witness before the probate court to provide testimony.

Witnesses before the probate court pursuant to this division shall be examined, and may be cross-examined, in open court, and their testimony shall be reduced to writing and then filed in the records of the probate court pertaining to the testator's estate.

(2) When an authenticated copy of a will has been admitted to record by a probate court, and an authenticated copy of a will of later date that was executed and proved as required by law, is presented to the same court for record, it shall be admitted to record in the same manner as if no authenticated copy of the will of earlier date had been so admitted.

(3) If a probate court admits a will of later date to probate, or an authenticated copy of a will of later date to record, its order shall operate as a revocation of the order admitting the will of earlier date to probate, or shall operate as a revocation of the order admitting the authenticated copy of the will of earlier date to record. The probate court shall enter on the record of the earlier will a marginal note "later will admitted to probate ..." (giving the date admitted).

(B) When a will that has been declared valid pursuant to section 2107.084 of the Revised Code has been admitted to probate by a probate court, and an authenticated copy of another will of later date that was executed and proved as required by law is presented to the same court for record, the will of later date shall be admitted the same as if no other will had been admitted and the proceedings shall continue as provided in this section.

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 05-31-1990

2107.23 [Repealed].

Effective Date: 05-26-1976

2107.24 Treatment of document as will notwithstanding noncompliance with statute.

(A) If a document that is executed that purports to be a will is not executed in compliance with the requirements of section 2107.03 of the Revised Code, that document shall be treated as if it had been executed as a will in compliance with the requirements of that section if a probate court, after holding a hearing, finds that the proponent of the document as a purported will has established, by clear and convincing evidence, all of the following:

(1) The decedent prepared the document or caused the document to be prepared.

(2) The decedent signed the document and intended the document to constitute the decedent's will.

(3) The decedent signed the document under division (A)(2) of this section in the conscious presence of two or more witnesses. As used in division (A)(3) of this section, "conscious presence" means within the range of any of the witnesses' senses, excluding the sense of sight or sound that is sensed by telephonic, electronic, or other distant communication.

(B) If the probate court holds a hearing pursuant to division (A) of this section and finds that the proponent of the document as a purported will has established by clear and convincing evidence the requirements under divisions (A)(1), (2), and (3) of this section, the executor may file an action in the probate court to recover court costs and attorney's fees from the attorney, if any, responsible for the execution of the document.

Effective Date: 07-20-2006; 2008 SB302 09-01-2008

2107.25 [Repealed].

Effective Date: 08-26-1977

2107.26 Lost, spoliated, or destroyed wills may be admitted to probate.

When an original will is lost, spoliated, or destroyed before or after the death of a testator, the probate court shall admit the lost, spoliated, or destroyed will to probate if both of the following apply:

(A) The proponent of the will establishes by clear and convincing evidence both of the following:

(1) The will was executed with the formalities required at the time of execution by the jurisdiction in which it was executed.

(2) The contents of the will.

(B) No person opposing the admission of the will to probate establishes by a preponderance of the evidence that the testator had revoked the will.

Effective Date: 10-29-1999

2107.27 Notice of application - testimony - probate.

(A) When application is made to the probate court to admit to probate a will that has been lost, spoliated, or destroyed as provided in section 2107.26 of the Revised Code or a document that is treated as a will as provided in section 2107.24 of the Revised Code, the party seeking to prove the will shall give a written notice by certified mail to the surviving spouse of the testator, to all persons who would be entitled to inherit from the testator under Chapter 2105. of the Revised Code if the testator had died intestate, to all legatees and devisees that are named in the will, and to all legatees and devisees that are named in the most recent will prior to the lost, spoliated, or destroyed will that is known to the applicant or in the most recent will prior to the document that is treated as a will if the most recent will is known to the applicant.

(B) In the cases described in division (A) of this section, the proponents and opponents of the will shall cause the witnesses to the will, and any other witnesses that have relevant and material knowledge about the will, to appear before the court to testify. If any witnesses reside out of its jurisdiction, or reside within its jurisdiction but are infirm or unable to attend, the probate court may order their testimony to be taken and reduced to writing by some competent person. The testimony shall be filed in the records of the probate court pertaining to the testator's estate.

(C) If upon such proof the court finds that the requirements of section 2107.24 or 2107.26 of the Revised Code, whichever is applicable, have been met, the probate court shall find and establish the contents of the will as near as can be ascertained. The contents of the will established under section 2107.26 of the Revised Code shall be as effectual for all purposes as if the original will had been admitted to probate and record. The contents of the will established under section 2107.24 of the Revised Code shall be as effectual for all purposes as if the document treated as a will had satisfied all of the requirements of section 2107.03 of the Revised Code and had been admitted to probate and record.

Effective Date: 07-23-2002; 07-20-2006

2107.28 Will lost, spoliated, or destroyed after admission to probate.

If a will is lost, spoliated, destroyed, mislaid, or stolen, after it has been admitted to probate but before it has been recorded, upon notice being given to the persons as provided by section 2107.27 of the Revised Code, the probate court may hear testimony. If the court is satisfied that the contents of the will have been substantially proved, the court may record the will as thus proven. The record shall have all the effects of a record of the original will.

Effective Date: 07-23-2002

2107.29 Record of will destroyed.

When the record of a will is destroyed, a copy of the will or a copy of the will and its probate may be recorded by the probate court if it appears to the court's satisfaction that the record has been destroyed and if it appears, by reason of a certificate signed and sealed by the probate judge, that the copy is a true copy of the original will or a true copy of the original will and its probate.

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-01-1953

2107.30 Original will may again be admitted to probate.

When the record of a will has been destroyed, the original will may again be admitted to probate and record.

Effective Date: 10-01-1953

2107.31 Limitations as to contests.

Sections 2107.29 and 2107.30 of the Revised Code do not affect the proceedings or extend the time for contesting the validity of any will or for asserting rights thereunder. The record provided for in such sections must show that the original record was destroyed, and the time, as near as may be, when the will was originally admitted to probate and record.

Effective Date: 10-01-1953

2107.32 Notice.

Every probate judge who admits a will or copy of a will to record under sections 2107.29 to 2107.31 of the Revised Code shall immediately after admitting the will or copy to record give notice for three consecutive weeks in two weekly newspapers of the probate judge's county if two are published in the county, or if not, in one newspaper of general circulation in the county, stating the name of the person the record of whose will has been destroyed and the day when the record was supplied under those sections. All persons interested in the record, at any time within five years from the making of the record, may come into the probate court and contest the question whether the record that was supplied is the same as the destroyed record .

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-01-1953

2107.33 Revocation of will.

(A) A will shall be revoked in the following manners:

(1) By the testator by tearing, canceling, obliterating, or destroying it with the intention of revoking it;

(2) By some person, at the request of the testator and in the testator's presence, by tearing, canceling, obliterating, or destroying it with the intention of revoking it;

(3) By some person tearing, canceling, obliterating, or destroying it pursuant to the testator's express written direction;

(4) By some other written will or codicil, executed as prescribed by this chapter;

(5) By some other writing that is signed, attested, and subscribed in the manner provided by this chapter.

(B) A will that has been declared valid and is in the possession of a probate judge also may be revoked according to division (C) of section 2107.084 of the Revised Code.

(C) If a testator removes a will that has been declared valid and is in the possession of a probate judge pursuant to section 2107.084 of the Revised Code from the possession of the judge, the declaration of validity that was rendered no longer has any effect.

(D) If after executing a will, a testator is divorced, obtains a dissolution of marriage, has the testator's marriage annulled, or, upon actual separation from the testator's spouse, enters into a separation agreement pursuant to which the parties intend to fully and finally settle their prospective property rights in the property of the other, whether by expected inheritance or otherwise, any disposition or appointment of property made by the will to the former spouse or to a trust with powers created by or available to the former spouse, any provision in the will conferring a general or special power of appointment on the former spouse, and any nomination in the will of the former spouse as executor, trustee, or guardian shall be revoked unless the will expressly provides otherwise.

(E) Property prevented from passing to a former spouse or to a trust with powers created by or available to the former spouse because of revocation by this section shall pass as if the former spouse failed to survive the decedent, and other provisions conferring some power or office on the former spouse shall be interpreted as if the spouse failed to survive the decedent. If provisions are revoked solely by this section, they shall be deemed to be revived by the testator's remarriage with the former spouse or upon the termination of a separation agreement executed by them.

(F) A bond, agreement, or covenant made by a testator, for a valuable consideration, to convey property previously devised or bequeathed in a will does not revoke the devise or bequest. The property passes by the devise or bequest, subject to the remedies on the bond, agreement, or covenant, for a specific performance or otherwise, against the devisees or legatees, that might be had by law against the heirs of the testator, or the testator's next of kin, if the property had descended to them.

(G) A testator's revocation of a will shall be valid only if the testator, at the time of the revocation, has the same capacity as the law requires for the execution of a will.

(H) As used in this section:

(1) "Trust with powers created by or available to the former spouse" means a trust that is revocable by the former spouse, with respect to which the former spouse has a power of withdrawal, or with respect to which the former spouse may take a distribution that is not subject to an ascertainable standard but does not mean a trust in which those powers of the former spouse are revoked by section 5815.31 of the Revised Code or similar provisions in the law of another state.

(2) "Ascertainable standard" means a standard that is related to a trust beneficiary's health, maintenance, support, or education.

Effective Date: 10-29-1999; 01-01-2007

2107.34 Afterborn or pretermitted heirs.

If, after making a will , a testator has a child born alive, adopts a child, or designates an heir in the manner provided by section 2105.15 of the Revised Code, or if a child or designated heir who is absent and reported to be dead proves to be alive, and no provision has been made in the will or by settlement for the pretermitted child or heir, or for that child's or heir's issue , the will shall not be revoked . Unless it appears by the will that it was the intention of the testator to disinherit the pretermitted child or heir, the devises and legacies granted by the will, except those to a surviving spouse, shall be abated proportionately, or in any other manner that is necessary to give effect to the intention of the testator as shown by the will, so that the pretermitted child or heir will receive a share equal to that which the person would have been entitled to receive out of the estate if the testator had died intestate with no surviving spouse, owning only that portion of the testator's estate not devised or bequeathed to or for the use and benefit of a surviving spouse. If the pretermitted child or heir dies prior to the death of the testator, the issue of the deceased child or heir shall receive the share the parent would have received if living.

If the pretermitted child or heir supposed to be dead at the time of executing the will has lineal descendants, provision for whom is made by the testator, the other legatees and devisees need not contribute, but the pretermitted child or heir shall take the provision made for the pretermitted child's or heir's lineal descendants or that part of it as, in the opinion of the probate judge, may be equitable. In settling the claim of a pretermitted child or heir, any portion of the testator's estate received by a party interested, by way of advancement, is a portion of the estate and shall be charged to the party who has received it.

Though measured by Chapter 2105. of the Revised Code, the share taken by a pretermitted child or heir shall be considered as a testate succession. This section does not prejudice the right of any fiduciary to act under any power given by the will, nor shall the title of innocent purchasers for value of any of the property of the testator's estate be affected by any right given by this section to a pretermitted child or heir.

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 05-16-2002

2107.35 Encumbrances.

An encumbrance upon real or personal property for the purpose of securing the payment of money or the performance of a covenant shall not revoke a previously executed will relating to that property.

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 09-04-1957

2107.36 Effect of alteration of property.

An act of a testator that alters but does not wholly divest the testator's interest in property previously devised or bequeathed by the testator does not revoke the devise or bequest of the property . The devise or bequest shall pass to the devisee or legatee the actual interest of the testator that would otherwise descend to the testator's heirs or pass to the testator's next of kin , unless the instrument by which the alteration is made declares the testator's intention that it shall operate as a revocation of the previous devise or bequest.

If the instrument by which the alteration is made is wholly inconsistent with the previous devise or bequest, the instrument shall operate as a revocation of the devise or bequest, unless the instrument depends on a condition or contingency, and the condition is not performed or the contingency does not happen.

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-01-1953

2107.37 Subsequent marriage.

A will executed by an unmarried person is not revoked by a subsequent marriage.

Effective Date: 01-01-1976

2107.38 Destruction of a subsequent will.

If a testator executes a second will, the destruction, cancellation, or revocation of the second will shall not revive the first will unless the terms of the revocation show that it was the testator's intention to revive and give effect to the testator's first will or unless, after the destruction, cancellation, or revocation of the second will, the testator republishes the testator's first will.

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-01-1953

2107.39 to 2107.45 Amended and Renumbered RC 2106.01 to 2106.08.

Effective Date: 05-31-1990

2107.46 Action by fiduciary.

Any fiduciary may file an action in the probate court against creditors, legatees, distributees, or other parties, and ask the direction or judgment of the court in any matter respecting the trust, estate, or property to be administered, and the rights of the parties in interest.

If any fiduciary fails for thirty days to file an action under this section after a written request from a party in interest, the party making the request may file the action.

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 01-01-1976

2107.47 Protection of purchaser against will or later will.

(A) The title, estate, or interest of a bona fide purchaser, lessee, or encumbrancer, for value, in real property situated in this state, that is derived from an heir of a decedent and acquired without knowledge of a will of the decedent that effectively disposes of it to another person, shall not be defeated by the production of a will of the decedent, unless, in the case of a resident decedent, the will is offered for probate within three months after the death of the decedent, or unless, in the case of a nonresident decedent, the will is offered for record in this state within three months after the death of the decedent.

(B) The title, estate, or interest of a bona fide purchaser, lessee, or encumbrancer, for value, in real property situated in this state, that is derived from a beneficiary under a will of a decedent and acquired without knowledge of a later will of the decedent that effectively disposes of it to another person, shall not be defeated by the production of a later will of the decedent, unless, in the case of a resident decedent, the later will is offered for probate within three months after the death of the decedent, or unless, in the case of a nonresident decedent, the later will is offered for record in this state within three months after the death of the decedent.

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-01-1996

2107.48 Foreign will cannot be contested here.

There shall be no proceeding in this state to contest a will executed and proved according to the law of another state or of a foreign country, relative to property in this state; but if such will is set aside in the state or country in which it is executed and proved, it shall be invalid in this state as to persons claiming under it who have notice of its being set aside, and invalid as to all other persons from the time an authenticated copy of the final order or decree setting it aside is filed in the office of the probate judge of the court in which the will is recorded.

Effective Date: 01-01-1979

2107.49 Rule in Shelley's case abolished.

When interests in real property are given by deed or will to a person for the person's life, and after the person's death to the person's heirs in fee, the conveyance shall vest an estate for life only in the first taker and a remainder in fee simple in the heirs of the first taker. If the remainder is given to the heirs of the body of the life tenant, the conveyance shall vest an estate for life only in the first taker and a remainder in fee simple in the heirs of the body of the life tenant. The rule in Shelley's case is abolished by this section and shall not be given effect.

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-01-1953

2107.50 Property acquired subsequent to will.

Any estate, right, or interest in any property of which a decedent had an interest at the time of the decedent's death shall pass under the decedent's will unless the will manifests a different intention.

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-01-1953

2107.501 Ademption - exemptions.

(A) A specific devisee or legatee has the right to the remaining specifically devised or bequeathed property, and the following:

(1) Any balance on the purchase price, together with any security interest owing from a purchaser to the testator at death by reason of sale of the property;

(2) Any amount of condemnation award unpaid at death for the taking of the property;

(3) Any proceeds unpaid at death on fire or casualty insurance on the property;

(4) Property owned by the testator at death as a result of foreclosure, or obtained in lieu of foreclosure, of the security for a specifically devised or bequeathed obligation.

(B) If specifically devised or bequeathed property is sold by a guardian, by an agent acting within the authority of a power of attorney, or by an agent acting within the authority of a durable power of attorney, or if a condemnation award or insurance proceeds are paid to a guardian, to an agent acting within the authority of a power of attorney, or to an agent acting within the authority of a durable power of attorney as a result of condemnation, fire, or casualty to the property, the specific devisee or legatee has the right to a general pecuniary devise or bequest equal to the net proceeds of sale, the condemnation award, or the insurance proceeds, and that devise or bequest shall be treated as property subject to section 2107.54 of the Revised Code. This section does not apply if subsequent to the sale, condemnation, fire, or casualty, it is adjudicated that the disability of the testator has ceased and the testator survives the adjudication by one year. The right of the specific devisee or legatee is reduced by any right acquired under division (A) of this section.

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 08-29-2000

2107.51 When whole estate to pass.

Every devise of an interest in real property in a will shall convey all the estate of the devisor in the property, unless it clearly appears by the will that the devisor intended to convey a less estate.

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-01-1953

2107.52 Deceased devisee; class gifts.

(A) As used in this section:

(1) "Class member" means an individual who fails to survive the testator but who would have taken under a devise in the form of a class gift had the individual survived the testator.

(2) "Descendant of a grandparent" means an individual who qualifies as a descendant of a grandparent of the testator or of the donor of a power of appointment under either of the following:

(a) The rules of construction applicable to a class gift created in the testator's will if the devise or the exercise of the power of appointment is in the form of a class gift;

(b) The rules for intestate succession if the devise or the exercise of the power of appointment is not in the form of a class gift.

(3) "Devise" means an alternative devise, a devise in the form of a class gift, or an exercise of a power of appointment.

(4) "Devisee" means any of the following:

(a) A class member if the devise is in the form of a class gift;

(b) An individual or class member who was deceased at the time the testator executed the testator's will or an individual or class member who was then living but who failed to survive the testator;

(c) An appointee under a power of appointment exercised by the testator's will.

(5) "Per stirpes" means that the shares of the descendants of a devisee who does not survive the testator are determined in the same way they would have been determined under division (A) of section 2105.06 of the Revised Code if the devisee had died intestate and unmarried on the date of the testator's death.

(6) "Stepchild" means a child of the surviving, deceased, or former spouse of the testator or of the donor of a power of appointment and not of the testator or donor.

(7) "Surviving devisee" or "surviving descendant" means a devisee or descendant, whichever is applicable, who survives the testator by at least one hundred twenty hours.

(8) "Testator" includes the donee of a power of appointment if the power is exercised in the testator's will.

(B)

(1) As used in "surviving descendants" in divisions (B)(2)(a) and (b) of this section, "descendants" means the descendants of a deceased devisee or class member under the applicable division who would take under a class gift created in the testator's will.

(2) Unless a contrary intent appears in the will, if a devisee fails to survive the testator and is a grandparent, a descendant of a grandparent, or a stepchild of either the testator or the donor of a power of appointment exercised by the testator's will, either of the following applies:

(a) If the devise is not in the form of a class gift and the deceased devisee leaves surviving descendants, a substitute gift is created in the devisee's surviving descendants. The surviving descendants take, per stirpes, the property to which the devisee would have been entitled had the devisee survived the testator.

(b) If the devise is in the form of a class gift, other than a devise to "issue," "descendants," "heirs of the body," "heirs," "next of kin," "relatives," or "family," or a class described by language of similar import, a substitute gift is created in the surviving descendants of any deceased devisee. The property to which the devisees would have been entitled had all of them survived the testator passes to the surviving devisees and the surviving descendants of the deceased devisees. Each surviving devisee takes the share to which the surviving devisee would have been entitled had the deceased devisees survived the testator. Each deceased devisee's surviving descendants who are substituted for the deceased devisee take, per stirpes, the share to which the deceased devisee would have been entitled had the deceased devisee survived the testator. For purposes of division (B)(2)(b) of this section, "deceased devisee" means a class member who failed to survive the testator by at least one hundred twenty hours and left one or more surviving descendants.

(C) For purposes of this section, each of the following applies:

(1) Attaching the word "surviving" or "living" to a devise, such as a gift "to my surviving (or living) children," is not, in the absence of other language in the will or other evidence to the contrary, a sufficient indication of an intent to negate the application of division (B) of this section.

(2) Attaching other words of survivorship to a devise, such as "to my child, if my child survives me," is, in the absence of other language in the will or other evidence to the contrary, a sufficient indication of an intent to negate the application of division (B) of this section.

(3) A residuary clause is not a sufficient indication of an intent to negate the application of division (B) of this section unless the will specifically provides that upon lapse or failure the nonresiduary devise, or nonresiduary devises in general, pass under the residuary clause.

(4) Unless the language creating a power of appointment expressly excludes the substitution of the descendants of an appointee for the appointee, a surviving descendant of a deceased appointee of a power of appointment may be substituted for the appointee under this section, whether or not the descendant is an object of the power of appointment.

(D) Except as provided in division (A), (B), or (C) of this section, each of the following applies:

(1) A devise, other than a residuary devise, that fails for any reason becomes a part of the residue.

(2) If the residue is devised to two or more persons, the share of a residuary devisee that fails for any reason passes to the other residuary devisee, or to other residuary devisees in proportion to the interest of each in the remaining part of the residue.

(3) If a residuary devise fails for any reason in its entirety, the residue passes by intestate succession.

(E) This section applies only to outright devises and appointments. Devises and appointments in trust, including to a testamentary trust, are subject to section 5808.19 of the Revised Code.

(F) This section applies to wills of decedents who die on or after the effective date of this section.

Added by 129th General AssemblyFile No.65, SB 117, §1, eff. 3/22/2012.

2107.521 Specific references to powers of appointment.

No provision of a will exercises a power of appointment held by the testator unless specific reference is made to the power.

Effective Date: 03-23-1981

2107.53 Undevised real property applied to debts.

When part of the real property of a testator descends to the testator's heirs because it was not disposed of by the testator's will, and the testator's personal property is insufficient to pay the testator's debts, the undevised real property shall be chargeable first with the debts, as far as it will go, in exoneration of the real property that is devised, unless it appears from the will that a different arrangement of assets was made for the payment of the testator's debts, in which case the assets shall be applied for that purpose in conformity with the will.

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-01-1953

2107.54 Contribution - exception.

(A) When real or personal property, devised or bequeathed, is taken from the devisee or legatee for the payment of a debt of the testator, the other devisees and legatees shall contribute their respective proportions of the loss to the person from whom the payment was taken so that the loss will fall equally on all the devisees and legatees according to the value of the property received by each of them.

If, by making a specific devise or bequest, the testator has exempted a devisee or legatee from liability to contribute to the payment of debts, or if the will makes a different provision for the payment of debts than the one prescribed in this section, the estate shall be applied in conformity with the will.

(B) A devisee or legatee shall not be prejudiced by the fact that the holder of a claim secured by lien on the property devised or bequeathed failed to present the claim to the executor or administrator for allowance within the time allowed by sections 2117.06 and 2117.07 of the Revised Code, and the devisee or legatee shall be restored by right of contribution, exoneration, or subrogation, to the position the devisee or legatee would have occupied if the claim had been presented and allowed for the sum that is justly owing on it.

(C) A devisee of real property that is subject to a mortgage lien that exists on the date of the testator's death, who does not have a right of exoneration that extends to that lien because of the operation of division (B) of section 2113.52 of the Revised Code, has a duty to contribute under this section to devisees and legatees who are burdened if the claim secured by the lien is presented and allowed pursuant to Chapter 2117. of the Revised Code.

(D) This section does not affect the liability of the whole estate of the testator for the payment of the testator's debts. This section applies only to the marshaling of the assets as between those who hold or claim under the will.

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-14-1983

2107.55 Portion of pretermitted heir, or of witness, subject to contribution.

When a part of the estate of a testator descends to a child born or adopted, or to an heir designated, after the execution of the will, or to a child absent and reported to be dead at the time of execution of the will but later found to be alive, or to a witness to a will who is a devisee or legatee, the estate and the advancement made to the child, heir, or witness for all the purposes mentioned in section 2107.54 of the Revised Code shall be considered as if it had been devised to that child, heir, or witness and the child, heir, or witness shall be bound to contribute with the devisees and legatees, as provided by that section, and may claim contribution from them accordingly.

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-01-1953

2107.56 Liability in case of insolvency.

When any of the persons liable to contribute toward the discharge of a testator's debt according to sections 2107.54 and 2107.55 of the Revised Code, is insolvent, the others shall be severally liable to each other for the loss occasioned by the insolvency, each being liable in proportion to the value of the property received by the person from the estate of the deceased. If any one of the persons liable dies without paying the person's proportion of the debt, the executors and administrators of the person's estate shall be liable for that proportion to the extent to which the person would have been liable if living.

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-01-1953

2107.57 Contribution enforced.

All cases arising under sections 2107.01 to 2107.62 , inclusive, of the Revised Code, in which devisees or legatees are required to contribute or in which contribution is to be made among devisees, legatees, and heirs, may be heard and determined in a single action.

Effective Date: 10-01-1953

2107.58 Order of sale to pay debts.

When a sale of real property aliened or unaliened by a devisee or heir is ordered for the payment of the debts of an estate, sections 2107.53 to 2107.57 of the Revised Code do not prevent the probate court from making an order and decree for the sale of any portion of the aliened or unaliened real property that is equitable among the parties, and making an order of contribution and further order and decree to settle and adjust the various rights and liabilities of the parties.

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-01-1953

2107.59 Sale of real property by executor's successor.

When a will is admitted to probate, or a will made out of this state is admitted to record as provided by sections 2129.05 to 2129.07 of the Revised Code, and interests in real property are given or devised by the will to the executors named in the will, or nominated pursuant to a power as described in section 2107.65 of the Revised Code, to be sold or conveyed, or the interests in real property thereby are ordered to be sold by the executors and one or more of the executors dies, refuses to act, or neglects to take upon self the execution of the will, then all sales and conveyances of the interests in real property by the executors who took upon themselves in this state the execution of the will, or the survivor of them, shall be as valid as if the remaining executors had joined in the sale and conveyance. But if none of the executors take upon themselves the execution of the will, or if all the executors who take out letters testamentary die, resign, or are removed before the sale and conveyance of the interests in real property, or die, resign, or are removed after the sale and before the conveyance is made, the sale or conveyance, or both, shall be made by the administrator with the will annexed or, if any, by a successor executor or successor coexecutor nominated pursuant to a power as described in section 2107.65 of the Revised Code.

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-14-1983

2107.60 Oral will.

An oral will, made in the last sickness, shall be valid in respect to personal property if reduced to writing and subscribed by two competent disinterested witnesses within ten days after the speaking of the testamentary words. The witnesses shall prove that the testator was of sound mind and memory, not under restraint, and that the testator called upon some person present at the time the testamentary words were spoken to bear testimony to the disposition as the testator's will.

No oral will shall be admitted to record unless it is offered for probate within three months after the death of the testator.

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-01-1953

2107.61 Will ineffectual.

Unless it has been admitted to probate or record, as provided in sections 2107.01 to 2107.62 or 2129.05 to 2129.07 of the Revised Code, no will is effectual to transfer real or personal property.

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-01-1953

2107.62 Expenses and fees.

The expense of proving and recording wills and of any action for declaratory judgment of validity shall be paid by the party at whose instance this is done. The witnesses and officers shall have the same fees for attendance and services as in other cases. When the executor or administrator is appointed, the expense shall be reimbursed out of the estate.

Effective Date: 01-01-1979

2107.63 Real or personal property devised, bequeathed or appointed to trustee of existing trust.

A testator may by will devise, bequeath, or appoint real or personal property or any interest in real or personal property to a trustee of a trust that is evidenced by a written instrument signed by the testator or any other settlor either before or on the same date of the execution of the will of the testator, that is identified in the will, and that has been signed, or is signed at any time after the execution of the testator's will, by the trustee or trustees identified in the will or their successors or by any other person lawfully serving, by court appointment or otherwise, as a trustee.

The property or interest so devised, bequeathed, or appointed to the trustee shall become a part of the trust estate, shall be subject to the jurisdiction of the court having jurisdiction of the trust, and shall be administered in accordance with the terms and provisions of the instrument creating the trust, including, unless the will specifically provides otherwise, any amendments or modifications of the trust made in writing before, concurrently with, or after the making of the will and prior to the death of the testator. The termination of the trust, or its entire revocation prior to the testator's death, shall invalidate the devise, bequest, or appointment to the trustee.

This section shall not affect any of the rights accorded to a surviving spouse under section 2106.01 of the Revised Code. This section applies, and shall be construed as applying, to the wills of decedents who die on or after the effective date of this amendment, regardless of the date of the execution of their wills.

Effective Date: 10-08-1992

2107.64 Trustee named in will as beneficiary.

A policy of life insurance, or an employee or self-employed benefit plan including, but not limited to, an employee trust or annuity plan, a Keogh plan, an individual retirement account or annuity, or a retirement bond, may designate as beneficiary a trustee named by will. Upon qualification and issuance of letters of trusteeship, the proceeds of the insurance or benefit plan shall be payable to the trustee to be held and disposed of under the terms of the will as they exist as of the date of the death of the testator and in the same manner as other testamentary trusts are administered. However, if no qualified trustee makes claim to the proceeds from the insurance company or the trustee of or other person holding funds of the benefit plan within twelve months after the death of the insured or the person covered by the benefit plan, or if satisfactory evidence is furnished to the insurance company or the trustee of or other person holding funds of the benefit plan within that twelve-month period showing that there is or will be no trustee to receive the proceeds, payment shall be made by the insurance company or the trustee of or other person holding funds of the benefit plan to the executors, administrators, or assigns of the insured or person covered by the benefit plan, unless otherwise provided by agreement with the insurance company or the trustee of or other person holding funds of the benefit plan during the lifetime of the insured or the person covered by the benefit plan.

The proceeds of the insurance or of the benefit plan as received by the trustee shall not be subject to debts of the insured or the person covered by the benefit plan or to estate tax to any greater or lesser extent than if the proceeds were payable to the beneficiary or beneficiaries named in the trust and not to the estate of the insured or the person covered by the benefit plan.

The insurance proceeds, or the proceeds of the benefit plan, so held in trust may be commingled with any other assets that may properly come into the trust.

Nothing in this section shall affect the validity of any life insurance policy beneficiary designation made prior to August 10, 1965, or the validity of any benefit plan beneficiary designation made prior to the effective date of this amendment, naming trustees of a trust established by will.

Effective Date: 03-23-1981

2107.65 Conferring power to name executor.

A testator may confer in the testator's will, upon one or more persons, the power to nominate, in writing, an executor, coexecutor, successor executor, or successor coexecutor, and also may provide in the will that the person or persons so nominated may serve without bond. If a will confers that power, the holders of it have the authority to nominate themselves as executor, coexecutor, successor executor, or successor coexecutor unless the will provides to the contrary.

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-14-1983

2107.71 Civil action to contest validity of will.

(A) A person interested in a will or codicil admitted to probate in the probate court that has not been declared valid by judgment of a probate court pursuant to section 2107.084 of the Revised Code or that has been declared valid by judgment of a probate court pursuant to section 2107.084 of the Revised Code but has been removed from the possession of the probate judge, may contest its validity by filing a complaint in the probate court in the county in which the will or codicil was admitted to probate.

(B) Except as otherwise provided in this division, no person may contest the validity of any will or codicil as to facts decided if it was submitted to a probate court by the testator during the testator's lifetime and declared valid by judgment of the probate court and filed with the judge of the probate court pursuant to section 2107.084 of the Revised Code and if the will was not removed from the possession of the probate judge. A person may contest the validity of that will, modification, or codicil as to those facts if the person is one who should have been named a party defendant in the action in which the will, modification, or codicil was declared valid, pursuant to section 2107.081 or 2107.084 of the Revised Code, and if the person was not named a defendant and properly served in that action. Upon the filing of a complaint contesting the validity of a will or codicil that is authorized by this division, the court shall proceed with the action in the same manner as if the will, modification, or codicil had not been previously declared valid under sections 2107.081 to 2107.085 of the Revised Code.

(C) No person may introduce, as evidence in an action authorized by this section contesting the validity of a will, the fact that the testator of the will did not file a complaint for a judgment declaring its validity under section 2107.081 of the Revised Code.

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 01-01-1979

2107.72 Rules of procedure - jury trial.

(A) The Rules of Civil Procedure govern all aspects of a will contest action, except as otherwise provided in sections 2107.71 to 2107.77 of the Revised Code.

(B)

(1) Each party to a will contest action has the right to a jury trial of the action. To assert the right, a party shall demand a jury trial in the manner prescribed in the Rules of Civil Procedure. Subject to division (B)(2) of this section, if a party demands a jury trial in that manner, the action shall be tried to a jury.

(2) Notwithstanding any provision to the contrary in Civil Rule 38, a demand of a jury trial in a will contest action may be withdrawn, if either of the following applies:

(a) All parties to the action who are not in default of answer, consent to the withdrawal of the demand prior to the commencement of the trial;

(b) All parties to the action who are not in default of answer and who are present at the time of the commencement of the trial, consent to the withdrawal of the demand.

Effective Date: 03-28-1985

2107.73 Parties to will contest action.

Persons who are necessary parties to a will contest action are as follows:

(A) Any person designated in a will to receive a testamentary disposition of real or personal property;

(B) Heirs who would take property pursuant to section 2105.06 of the Revised Code had the testator died intestate;

(C) The executor or the administrator with the will annexed;

(D) The attorney general as provided by section 109.25 of the Revised Code;

(E) Other interested parties.

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 05-26-1976

2107.74 Order of probate prima-facie evidence of attestation, execution and validity of will.

On the trial of any will contest under section 2107.71 of the Revised Code, the order of probate is prima-facie evidence of the attestation, execution, and validity of the will or codicil. The contesting party may call any witness to the will as upon cross examination.

Effective Date: 01-01-1976

2107.75 Administration costs of purported last will or codicil.

When the jury or the court finds that the writing produced is not the will or codicil of the testator, the trial court shall allow as part of the costs of administration the amounts to the fiduciary and to the attorneys defending the purported will or purported codicil that the trial court finds to be reasonable compensation for the services rendered in the will contest action. The court shall order the amounts allowed to be paid out of the estate of the decedent.

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 01-01-1976

2107.76 Will contest action - time limits.

No person who has received or waived the right to receive the notice of the admission of a will to probate required by section 2107.19 of the Revised Code may commence an action permitted by section 2107.71 of the Revised Code to contest the validity of the will more than three months after the filing of the certificate described in division (A)(3) of section 2107.19 of the Revised Code. No other person may commence an action permitted by section 2107.71 of the Revised Code to contest the validity of the will more than three months after the initial filing of a certificate described in division (A)(3) of section 2107.19 of the Revised Code. A person under any legal disability nevertheless may commence an action permitted by section 2107.71 of the Revised Code to contest the validity of the will within three months after the disability is removed, but the rights saved shall not affect the rights of a purchaser, lessee, or encumbrancer for value in good faith and shall not impose any liability upon a fiduciary who has acted in good faith, or upon a person delivering or transferring property to any other person under authority of a will, whether or not the purchaser, lessee, encumbrancer, fiduciary, or other person had actual or constructive notice of the legal disability.

Amended by 128th General AssemblyFile No.13, SB 106, §1, eff. 3/23/2010.

Effective Date: 10-31-2001; 06-05-2006

2107.77 Later wills.

Sections 2107.71 to 2107.76 of the Revised Code apply to later wills admitted to probate.

Effective Date: 05-26-1976