COURT OF COMMON PLEAS

COLUMBIANA COUNTY, OHIO

PROBATE DIVISION, INCLUDING THE JUVENILE COURT

            IN RE: RULES OF COURT

            CASE NO.  98 MM 02            DOCKET            PAGE________

 JUDGMENT ENTRY

            All local rules heretofore adopted by this division of the Common Pleas Court are hereby repealed and the following rules are adopted effective May 18, 1998.

            Counsel are advised in referring to these rules to consult the appropriate Superintendency Rule promulgated by the Ohio Supreme Court and similarly enumerated.

            Counsel are also advised that the Rules of the General Division of this Court apply to those situations not specifically covered herein.  Relief from the application of any Rule may be had upon written motion submitted with a proposed journal entry of judgment.

            It is the intention of the Court to promote the administration of justice through proper application of published procedures.

            A certified copy of this judgment entry and the accompanying Local Rules adopted hereby are ordered forwarded to the Supreme Court of the State of Ohio in accordance with law.

                                                                                                _______________________

                                                                                                C. ASHLEY PIKE, Judge

TABLE OF CONTENTS:                                               

RULE    53.1            HOURS OF THE COURT                                                                                   

RULE    55.1            RECORDS AND TRANSCRIPTS                                                             

RULE    57.1            MOTIONS AND HEARINGS                                                                  

RULE    58.1            REQUEST FOR JURY TRIAL                                                              

RULE    58.2            COURT COSTS                                                                                    

RULE    61.1            APPOINTMENT OF APPRAISERS                                                  

RULE    66.1            SEPARATE GUARDIANSHIPS                                                                   

RULE    66.2            GUARDIANSHIP: LIMITATION                                                                  

RULE    66.3            WARD'S WILLS: DEPOSIT FOR SAFEKEEPING                        

RULE    66.4            GUARDIAN'S REPORT:  FILING                                                             

RULE    71.1            COUNSEL FEES - DECEDENT'S ESTATES,                                           

                               GUARDIANSHIPS, AND TRUSTS

RULE    73.1            GUARDIAN 'S COMPENSATION                                                                     

RULE    74.1            TRUSTEE' S COMPENSATION                                                                     

 APPENDIX A                                                                                                                

 APPENDIX B                                                                                                                

 APPENDIX C                                                                                                                

 RULE 53.1 - HOURS OF THE COURT

            The Probate Division and its offices shall be open for the transaction of business from 8:00 o'clock A.M. to 4:00 o'clock P.M. Monday through Friday.  The Probate Court shall be closed on Saturday, Sunday, and legal holidays.

RULE 55.1 - RECORDS AND TRANSCRIPTS

(A)            EXAMINATION OF FILES, RECORDS, AND OTHER DOCUMENTS:

            Copies of any open records may be obtained at $.25 per page.

(B)            TRANSCRIPTS OF PROCEEDINGS: Transcripts of Court proceedings can be obtained at rates of compensation to be established by the Court.   An advance deposit may be required, and the transcript will only be released upon PAYMENT IN FULL by requesting counsel.

RULE 57.1 - MOTIONS AND HEARINGS

            All motions shall be submitted in writing with the proper case heading and number accompanied by a memorandum on the related law.   Motions may be decided by the Court on the pleadings without hearing unless an oral hearing is requested by a party or ordered by the Court.

            Counsel are advised that the Court may elect to hold some motion hearings by telephone.  Counsel should feel free to request this procedure in appropriate cases where only the appearance of counsel would be required to address the pending issues.  For the convenience of counsel, there is included herein, as Appendix C, an appropriate judgment entry for use in requesting hearings by telephone. No separate motion shall ordinarily be required.

 RULE 58.1 - REQUEST FOR JURY TRIAL.

            All such requests in civil actions shall be accompanied by an advance deposit in the amount specified by the posted schedule of  advance deposits,  unless  another amount  is established by the Court for the particular case.

 RULE 58.2 - COURT COSTS

            The Court requires deposits for advanced costs in actions or proceedings in amounts as stated on approved schedules posted in the areas of the filing counters in the Probate and Juvenile Courts.

            These amounts are subject to change upon reasonable notice as circumstances require.

            Where a poverty affidavit is filed, hearing may be held thereon at the earliest practicable time before proceedings are begun.

            Upon termination of a matter, the deputy clerk shall forward a cost bill to the party and/or his attorney for unpaid costs and the same shall be paid not later than 35 days from the date of the cost bill.

RULE 61.1 -  APPOINTMENT OF APPRAISERS

(A)        When required by law, there shall be one suitable and disin­terested appraiser appointed by the executor or administrator of an estate, with court approval.  The following persons shall be disqualified from being such an appraiser:

            (1)            A person related by blood or marriage to the Decedent;

            (2)            A beneficiary of the estate;

            (3)            A person related by blood, marriage or employment to the attorney for the estate (unless waived by the fiduciary); and

            (4)            A person related by blood, marriage or employment to the fiduciary for the estate.

(B)        Real estate appraisals shall be made by licensed real estate

            agents,  brokers,  auctioneers,  credentialed  real  estate appraisers, or such other persons who by experience and training are qualified to make real estate appraisals and are approved by the Court.

(C)        No appraiser shall be permitted to purchase or acquire, directly or indirectly, any of the property that he or she appraises, except at public auction.

(D)            Notwithstanding sections (A) through (C) of this rule, the market value of real       estate as found in the Columbiana County Auditor's property records shall be             accepted as the readily ascertainable value of the property and no further appraisal of such property shall be required except as provided under Paragraph F of this rule.  A copy of said evaluation shall be attached to Form 6.1 -Schedule of Assets or Form 5.1 - Assets and Liabilities of Estate to be Relieved from Administration, whichever is applicable.

(E)        Readily ascertainable value of motor vehicle:

            Notwithstanding sections (A) through (C) of this rule, the market value of any motor vehicle as found in the current N.A.D.A. Official Used Car Guide under the category "Avg Retail" may be adopted as the readily ascertainable value of the property and no further appraisal of such property shall be required except as provided under Paragraph F of this rule. A copy of the appropriate page from said booklet shall be attached to Form 6.1 - Schedule of Assets or Form 5.1 -      Assets and Liabilities of Estate to be Relieved from Administration, whichever is applicable.

            (F)            An  administrator,  executor,  fiduciary,  beneficiary,  or creditor of a Decedent's estate may file a written request with the Probate Court not later than the date set for hearing on the Inventory and Appraisal pursuant to R. C. 2115.1 that any property deemed to be appraised by readily ascertainable value shall be appraised by a suitable and disinterested appraiser as provided in sections (A) through (C) of this rule.

RULE 66.1-            SEPARATE GUARDIANSHIPS

            A separate  guardianship must be  filed and a file established for each prospective ward, except in some matters where a guardianship is being established on behalf of several minors in connection with the settlement of a common claim on behalf of all of them.   Providing the settlement will be divided among the minors in separate accounts, the application for guardianship and the minors' settlement may be handled under one case number, with permission of the Court.

RULE 66.2  -            GUARDIANSHIP: LIMITATION

            Ordinarily, the Court will not accept for filing any guardianship for a minor where the only purpose of the guardianship is to establish a residence for school purposes. Custody for school purposes is a matter to be heard and determined in the Juvenile Division of the Court.

RULE 66.3 -            WARD'S WILLS:  DEPOSIT FOR SAFEKEEPING

            All guardians must deposit for safekeeping with the Court any Will or Codicil thereto of his or her ward in accordance with Ohio Revised Code 2107.07.

RULE 66.4 - GUARDIAN'S REPORT:            FILING

            Every guardian shall file his or her report as described in Ohio Revised Code 2111.49 simultaneously with the filing of the guardianship account.

RULE 71.1 - COUNSEL FEES - DECEDENT'S ESTATES, GUARDIANSHIPS, AND TRUSTS

            (A)            Attorney fees paid pursuant to a fully executed Certificate of Termination as provided for in Revised Code 2109.30 do not require Court approval.

            B)            Where the attorney on application to the court prior to or during estate administration requests a fixed fee, the Court, if it deems it appropriate, will then fix a reasonable fee for legal services beneficial to the administration of the estate. Pursuant to Superintendence Rule 71(D),                             "The Court may set a hearing on any application for allowance of attorney fees regardless of the fact that the required consents of the beneficiaries have been given."

            (C)            Counsel fees for the administration of a decedent's estate an in  connection  with  Trusts  and  Guardianships  shall  be reasonable and beneficial to the matter.  The application for fees shall be in writing setting forth details supporting the calculations on which  requested fees are based. See Appendix.

            (D)            Counsel fees for the administration of estates, trusts, and guardianships, as set forth in the Appendix, may serve as a guide in determining fees to be charged legal services of an ordinary nature rendered for a fiduciary in any such matter. In the case of legal services rendered of an extraordinary nature, counsel are directed to apply to the Court for the allowance of extraordinary fees.  Counsel should include with said application for extraordinary fees time records and a detailed statement of services performed.  The accompanying consent or approval of the fiduciary is also helpful.

(E)        Such guides, however, are not to be considered nor  represented to clients as schedules of minimum or maximum fees to be charged. The primary responsibility concerning the establishment of fees in a particular matter rests between counsel and the fiduciary and/or beneficiaries involved.  The Court's role is limited to passing on the reasonableness of the compensation.

(F)        Where the attorney, law partner or firm associate is appointed as fiduciary, guardian, or trustee, the total administration fee for any period may not exceed the total of either the counsel or fiduciary fee, as selected by counsel, plus one-half of the other fee.   Pursuant to Superintendence Rule 71(B), "Attorney fees for the administration of estates shall not be paid until the final account is prepared for filing unless otherwise approved by the Court upon application and for good cause shown."  This Court hereby requires that no Final Account be filed later than sixty (60) days following Court approval of attorney fees.

(G)        If disparity or injustice result due to application of any percentages set forth in the Appendix, such disparity or injustice may be reviewed on the Court's own motion; upon the filing of exceptions to any account; or upon timely motion filed by any interested party.

(H)        Counsel are advised to maintain accurate records of work completed and time spent on all matters.

(I)         Counsel may use as guidelines for the computation of fees in guardianships and trusts the identical guidelines provided for guardian's compensation and individual trustee's compensation set forth in Local Rules 73.1 and 74.1, respectively. Minimal fees of $200.00 for securing the appointment of a guardian and $100.00 for preparing a two-year accounting report in the case of non-indigent guardianships are considered reasonable in MOST CASES.  Please consult Appendix B for sample entries and computations to be submitted when requesting approval of counsel fees in guardianships and trusts.

RULE 73.1 - GUARDIAN'S COMPENSATION

            (A)            Guardian fees for the administration of a guardianship shall be only those deemed reasonable and beneficial to the same. The allowance of fees shall be in writing setting forth pertinent  details  supporting  the  calculations  on  which requested fees are based.  Set forth below are guidelines for determining fees to be charged for guardian services in administering any guardianship.  Such guidelines, however, are NOT to be considered schedules of minimum OR maximum fees to be charged.

                        (1)            Income: 6% of Total Income During 2-year Accounting Period.

                        (2)            Principal: $4.00 Per Thousand (.004)  on First $200,000 of Market Value during 2-year Accounting Period.  $1.50 Per Thousand (.0015) on Excess Over $200,000 of Market Value During Same Period.

            (B)            For purposes of determining compensation based on income, the following shall NOT be deemed income:

                                    (a)            All receipts of corpus by respective guardian;

                                    (b)            Any balance carried forward from prior accounting; and

                                    (c)            All investments AND reinvestments of corpus.

            (C)            Where the attorney of record, law partner, or firm associate is also appointed as guardian, the guardian's fee may be limited in accordance with Rule 71.1(F).

            (D)            Please consult Appendix B for sample entries to be submitted when requesting approval of guardian fees.

RULE 74.1 -             TRUSTEE'S COMPENSATION CORPORATE TRUSTEES

            (A)            CORPORATE TRUSTEES

                        (1)            Except where the instrument creating the trust makes provisions for compensation, a corporation functioning as testamentary trustee may charge fees on the same basis as it charges for living trusts.

                        (2)            Fee schedules are to be furnished to the Court on the 1st business day of January of each year and whenever a change in fees is made within any calendar year.

                        (3)            A  separate  schedule  containing  computation  figures providing a basis for the corporate trustee's compensation shall be set forth in the trustee's account as a condition for its approval.

                        (4)            The corporate trustee may charge its applicable "sweep fee" for the management of money market funds within testamentary trust accounts.

                        (5)            Corporate Trustees may, at their option, elect to use the Individual Trustee's compensation schedule set forth below.

            (B)            INDIVIDUAL TRUSTEES

                        (1)  Except where the instrument creating the trust makes provisions for compensation, an individual functioning as testamentary trustee may charge as follows:

                        (a)            Principal Fee.   A fee of $2.00 per 1M of the principal's market value held by the trustee.

                        (b)            Income Fee.   A fee of six and one-half percent (6.5%)  of the total income for the accounting period.

                        (c)            Principal Distribution Fee.  A fee of one percent (1%)  of  the principal  distributed  during  the accounting period.

            (2)            Corporate Trustees may at their option elect to use the Individual Trustee's compensation schedule.

   

APPENDIX A

IN THE COURT OF COMMON PLEAS

COLUMBIANA COUNTY, OHIO

PROBATE DIVISION

ESTATE OF________________________________________________

CASE NO.  _______________________DOCKET            PAGE_______ 

APPLICATION FOR AUTHORITY TO PAY COUNSEL FEES FOR AN ESTATE

______________________________________, Attorney at Law, states that it was necessary  for  the  fiduciary  to  employ  counsel  to  properly administer the within estate.   The fee agreement between the fiduciary and counsel was based on one of the following indicated methods:

                                    _____Court fee guideline (calculation attached);

                                    _____ Hourly rate (attached brief summary of hours & rate)

                                    _____Other (explain):______________________________

___________________________________________________________________

____________________________________________________________________

The undersigned states that the reasonable value of professional legal services in this matter is $__________ and, with the consent of the fiduciary, requests approval of the Court directing payment in full from estate assets simultaneously with the filing of the Final Account.

APPROVED:

_______________________                               ___________________________

Fiduciary                                                                                   Attorney At Law  

(App A:  Page 1 of 3)

ESTATE COUNSEL FEE GUIDELINE

            The Court hereby adopts as a guideline only the following percen­tage calculation based on the following definition of "Gross Estate."

            The meaning of "Gross Estate" shall be the highest dollar value of

(1) Inventory; (2) Ohio Estate Tax Determination; (3) Federal Estate Tax Determination; or (4) the Account or Accounts.   (Note: Gross Estate shall not include insurance proceeds payable to a named beneficiary, but shall include not less than one-half of all co-owned or survivorship accounts or property in decedent's name payable on death to another person. Where the Federal Estate Tax Return is used as a criterion, the attorney shall file with the Court a brief statement indicating the total assets appearing on the Federal Estate Tax Return.)

            In the determination of the attorney's fee, the following percent-ages were applied to the "Gross Estate" which was determined to be:

(Circle the one used)

            (1)  Inventory                                            Value___________

            (2)  Ohio Estate Tax Determination            Value___________

            (3)  Federal Estate Tax Determination        Value___________

            (4)  Account or Accounts                           Value___________

            6% on the first $50,000.00                         $________________

            4% on the next $50,000.00                        $_________________

            3% on the next $300,000.00                      $_________________

            2% on the balance;                                   $________________

                          Total Fee Requested                   $_________________

            ____________________________                    _________________________

                        Fiduciary                                                                      Attorney

          __________________________________                      __________________________  

        (name typed or printed)                                                 (name typed or printed)

  (App A:  Page 2 of 3)

  IN THE COURT OF COMMON PLEAS

COLUMBIANA COUNTY, OHIO

PROBATE DIVISION

ESTATE OF _________________________________________________________

CASE NO. __________________________DOCKET___________PAGE ________

                        JUDGMENT ENTRY:            COUNSEL FEES FOR AN ESTATE

            THIS Court finds that proper administration of said estate required the Fiduciary or Commissioner to employ __________________,____ as Estate Counsel, and that the dollar amount of legal services provided, $______________, constitutes reasonable attorney fees, subject to exceptions.

            WHEREUPON, the Fiduciary or Commissioner is hereby authorized to make such payment out of this Estate's assets.   The actual filing of the Final Accounting shall occur not later than sixty (60) days from the filing of this Order.

DATE:                                                                           _____________________________

                                                                                    C. ASHLEY PIKE, Judge

APPROVED:

­_________________________

Fiduciary or Commissioner

 

_________________________

Attorney

  (App A:  Page 3 of 3)

APPENDIX B

IN THE COURT OF COMMON PLEAS

COLUMBIANA COUNTY, OHIO

PROBATE DIVISION

TRUST OR GUARDIANSHIP OF __________________________________________

CASE NO. ___________________________DOCKET            PAGE _______________

JUDGMENT ENTRY:            COUNSEL FEES GUARDIANSHIP/TRUST

            It appearing to the Court that it was necessary for the (Guardian) (Trustee) to employ _______________________________, Attorney at Law, and that the reasonable value of said legal services provided is

$_____________, the same is allowed as attorney fees, subject to exceptions.  The computation of fees is attached, if applicable.

            The (Guardian) (Trustee) is authorized to make such payment out of the assets of the Estate.

                                                                                    _________________________

                                                                                    C. ASHLEY PIKE Judge

  Approved by:

__________________________

(Guardian)     (Trustee)

_________________________

Attorney at Law

Dated: ___________________

 (App B:            Page 1 of 4)

IN THE COURT OF COMMON PLEAS

COLUMBIANA COUNTY, OHIO

PROBATE DIVISION

GUARDIANSHIP OR TRUST ______________________________________

CASE NO.________________________________DOCKET_______PAGE_______

JUDGMENT ENTRY:            GUARDIAN OR TRUSTEE FEES

(with attached computation)

            The Court approves and orders paid reasonable compensation to the Guardian/Trustee in the sum of $________________ and orders the same paid from the assets of the Guardianship/Trust.

            Said payment is ordered made simultaneously with the filing of any accounting now due.

                                                                                    ________________________

                                                                                    C. ASHLEY PIKE JUDGE

  APPROVED:

__________________________

GUARDIAN/TRUSTEE

__________________________

ATTORNEY AT LAW

 

DATED: ___________________

  (App B:  Page 2 of 4)

  COMPUTATION OF FEES

(Guardian/Counsel)

    (Two Year Accounting Period)

  Two Year Accounting Period from ________________________ to ________________

ORDINARY FEES

I.          Total Income During Period ($            ) x 6%                                                   $ ________

II.            Principal Fee of $4 per thousand (.004) of the first 

              $200,000 of market value                                                                             $_________

              $1.50 per thousand (.0015) of market value over $200,000                              $_________

TOTAL ORDINARY FEES                                                                                         $ _________

            (Minimum $100 for any 2-year accounting period)

III.            Extraordinary Fees (Itemize and attach time records)

            A. ________________________________________

            B. ________________________________________

            C. ________________________________________

            TOTAL EXTRAORDINARY FEES                      $____________________

___________________________________________________________________        

            TOTAL I, II, and III                                                         $ ______________________

            TOTAL FEE REQUESTED                                        $ ______________________

  (App B:  Page 3 of 4)

  COMPUTATION OF TRUST FEES

IN THE CASE OF INDIVIDUAL TRUSTEES

Two Year Accounting Period From __________________to ___________________

I.   Principal Fee =~$2.00 per $1,000 of Principal's Market Value

_______________________ =            $2.00 x  $ ______________________

  II.  Income Fee = 6.5% of Total Income During Accounting Period

_________________________=            6.5% x  $ ________________________

  III. Principal Distribution Fee = 1% of Principal Distributed

_________________________ = 1% x  $___________________________

 

TOTAL FEES COMPUTED FROM ABOVE =  $___________________________

TOTAL FEES REQUESTED =   $______________________________________

 (App B:  Page 4 of 4)

APPENDIX C

IN THE COURT OF COMMON PLEAS

COLUMBIANA COUNTY, OHIO

PROBATE DIVISION

IN THE MATTER OF _________________________________________

CASE NO. _________________________________DOCKET ________ PAGE ______ 

JUDGMENT ENTRY

            Upon oral motion and based on the representations of counsel that the same is appropriate, proceedings scheduled in this matter for __________________________ will be held by telephone with the Court contacting counsel of record at the appropriate time.

                                                                                                ______________________

                                                                                                C. ASHLEY PIKE  

                                                                                                Judge

Approved by:

 

__________________________

Attorney at Law

 

Dated: ____________________

(App C:  Page 1 of 1)