Login | January 23, 2021

Prescription for probate backlog lowers bar for public notice

Special to the Legal News

Published: November 24, 2020

A bill that aims to speed up the name-change process in probate courts throughout the state would rely more on a judge’s discretion at the expense of the current notice publication process.
According to a senior aide of the bill’s sponsor, the proposed changes are expected to go a long way toward easing a backlog that has persisted the past couple of years.
“The bill would make the process faster, more efficient and at a lower cost to applicants by eliminating hearing and publication notice mandates and granting probate courts more discretion to determine the best way to administer each action on a case-by-case basis,” said Aaron Mabe, senior legislative aide to Sen Bob Hackett, a London Republican.
The current logjam in probate courts appears to be an unintended consequence of the state’s move to adopt a TSA-compliant driver’s license and state ID that would allow residents easier access to domestic air travel.
A requirement of the new licenses and IDs issued by the Bureau of Motor Vehicles is proof of one’s full legal name.
If for any reason an individual’s name does not match his birth certificate, U.S. passport or naturalization card, and the individual wanted to acquire the federally compliant license or state ID, presumably he would file an application for a name change at his local court.
Mabe said introduction of the federally compliant license and ID has resulted in a sharp increase in name-change applications, bedeviling probate judges.
Greene County Probate Judge Thomas O’Diam first raised the issue with Hackett, the aide said.
Current law governing a name-change application provides for a hearing and for the hearing notice to be given once by publication in a newspaper of general circulation in the county at least 30 days before the hearing, analysis by the Ohio Legislative Service Commission provided. That hearing notice sets forth the probate court where the application was filed, the case number, and the hearing date and time.
The bill would amend probate court procedure by making changes that include permitting the court to determine if a hearing is required and, if so, setting the hearing notice’s manner, scope and content; requiring the applicant to submit official identity documents; and requiring a criminal records check on the applicant, analysis detailed.
Mabe said the most notable difference between the status quo and the bill, filed as Senate Bill 373, is a probate judge would have the ability to put out a public notice on a case-by-case basis under the bill.
Additionally, the bill would allow probate courts to correct specific errors in a person’s chain of identity so the individual’s current legal name is conformed for all purposes in all identity documents, he added.
O’Diam not only alerted the lawmaker of a backlog in his own court, he provided Hackett a bill proposal devised by the Ohio Judicial Conference’s Ohio Probate Judges Association.
“The increase in cases drew attention to the lack of statutory remedy for name conformity actions as well as the expensive and lengthy name-change process in current law,” conference Deputy Legislative Counsel Shawn Welch told The Daily Reporter.
Using the Franklin County probate court as an example, the extended 45-day timeline allows for 30 days’ notice and a hearing, and the expense may total as much as $188 not accounting for any attorney fees.
The fee includes the cost of publication, which ranges from $30 to $60, according to an online resource provided by Probate Judge Robert Montgomery.
Welch said that the bill does not change current practice regarding public records, despite the bill’s exclusion of any provision for notice to the public or interested parties.
“Everything in the name-change process remains a public record, except for a limited exception existing in current law for sealing records that may jeopardize the applicant's personal safety,” Welch said. “Depending on the county, the probate courts’ name change records may be available online.”
When pressed on the bill’s exclusion of a notice provision, he said the organization expected no constitutional challenge to the legislation.
“Nor do we see any constitutional violations in this bill,” he continued. “The bill maintains equal protection for anyone seeking a name change or conformity action.
“The bill likely enhances protection for women who comprise the majority of name-change applicants. … Due process, including notice and consent, is maintained for name-change actions involving children.”
The Ohio attorney general’s office, which leads an initiative to protect crime victims’ rights, did not respond to an inquiry seeking comment on the changes and any implications they may have on victims of crime.
About half of the states require publication of name changes via newspaper, while a half dozen more may request publication or some sort of notice, depending upon the case, a review of state practices found.
As the current legislative session wanes, lawmakers have until the end of the year to secure approval of the measure or that of a companion bill in the Ohio House of Representatives.
“We are hoping for the bill to have a couple of hearings and possibly added to another bill before the end of session,” Mabe said.
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