Chapter 2121 | Presumed Decedents' Law

Section 2121.01 | Presumption of death.

• Effective: January 13, 2012
• Latest Legislation: Senate Bill 124 - 129th General Assembly

(A) Except as provided in division (B) of this section, a presumption of the death of a person arises upon either of the following:

(1) When the person has disappeared and been continuously absent from the person's place of last domicile for a five-year period without being heard from during the period;

(2) When the person has disappeared and been continuously absent from the person's place of last domicile without being heard from and was at the beginning of the person's absence exposed to a specific peril of death, even though the absence has continued for less than a five-year period.

(B) When a person who is on active duty in the armed services of the United States has been officially determined to be absent in a status of "missing" or "missing in action," a presumption of death arises when the head of the federal department concerned has made a finding of death pursuant to the "Federal Missing Persons Act," 80 Stat. 625 (1966), 37 U.S.C.A. 551, as amended and hereafter amended.

Section 2121.02 | Proceedings in case of presumption of death.

• Effective: January 13, 2012
• Latest Legislation: Senate Bill 124 - 129th General Assembly

(A) When a presumption of death arises under section 2121.01 of the Revised Code with respect to a person who at the time of disappearance was domiciled in this state, the attorney general of this state or any person entitled under the will of the presumed decedent or under Chapter 2105. of the Revised Code to any share in the presumed decedent's property within this state, or any person or entity who, under the terms of any contract, beneficiary designation, trust, or otherwise, may be entitled to any property, right, or interest by reason of the death of the presumed decedent, may file a complaint setting forth the facts that raise the presumption of death in the probate court of the county of the presumed decedent's last residence.

(B) When a presumption of death arises pursuant to section 2121.01 of the Revised Code with respect to a person who at the time of the person's disappearance was domiciled at a place other than within the state, and the presumed decedent owns real property within this state, the complaint may be filed in the county where any part of the real property of the presumed decedent is located by any of the persons or entities referred to in division (A) of this section, or by any domiciliary executor or administrator of the decedent. A foreign fiduciary shall include with the complaint an exemplified copy of the domiciliary proceedings pursuant to which the foreign fiduciary was appointed.

(C) In the case of a presumed decedent who was domiciled in this state, the complainant shall name as parties defendant the presumed decedent and each of the following that do not join in the complaint:

(1) The presumed decedent's surviving spouse, if any;

(2) All persons known to the complainant who are entitled under the presumed decedent's will and all persons who are entitled under Chapter 2105. of the Revised Code to any share of the presumed decedent's property;

(3) All persons or entities known to the complainant who have or would have by reason of the presumed decedent's death any right or interest under any contract, beneficiary designation, trust, or otherwise;

(4) All contract obligors known to the complainant whose rights or obligations would be affected by a determination that the presumed decedent is in fact dead.

(D) In the case of a presumed decedent who was not domiciled in this state but who owned real property in this state, the complainant shall name as parties defendant each of the following that do not join in the complaint:

(1) The presumed decedent's surviving spouse, if any;

(2) All persons known to the complainant who are entitled under the presumed decedent's will and all persons who are entitled under Chapter 2105. of the Revised Code to any share of the presumed decedent's real property within this state.

(E) All parties defendant, other than the presumed decedent, shall be served with summons in the same manner as provided by the Rules of Civil Procedure.

(F) The complainant shall cause to be advertised once a week for four consecutive weeks in a newspaper published in the county, the fact that the complaint has been filed together with a notice that on a day certain, that shall be at least four weeks after the last appearance of the advertisement, or after the final publication where any defendant is being served by publication, whichever is later, the probate court will hear evidence relevant to the allegations of the complaint.

(G) No guardian ad litem, trustee for the suit, or other representative shall be required to be appointed to represent the presumed decedent in the proceeding.

Section 2121.03 | Probate court hearing.

• Effective: September 30, 1974
• Latest Legislation: Senate Bill 349 - 110th General Assembly

At the hearing the probate court shall hear such legally admissible evidence as is offered for the purpose of ascertaining whether the presumption of death is established. No person shall be disqualified to testify by reason of relationship as husband or wife to the presumed decedent, or by reason an interest in the presumed decedent's property, or because of a right or interest under the terms of a contract, beneficiary designation, trust, or otherwise, arising by reason of the death of the presumed decedent.

Section 2121.04 | Date of decree - marriage dissolved.

• Effective: September 30, 1974
• Latest Legislation: Senate Bill 349 - 110th General Assembly

(A) If satisfied that a presumption of death has been established, as provided in section 2121.01 of the Revised Code, the probate court shall so decree.

(B) The death of such presumed decedent shall for all purposes under the law of this state be regarded as having occurred as of the date of such decree.

(C) If the presumed decedent is married on the date of the decree, the presumed decedent's marriage is dissolved by the decree. No subsequent vacation of the decree, as provided in section 2121.08 of the Revised Code, shall affect the dissolution of the marriage.

Section 2121.05 | Proceedings for probating will.

• Effective: January 13, 2012
• Latest Legislation: Senate Bill 124 - 129th General Assembly

(A) Except as provided otherwise in this chapter, all of the proceedings for the probate of the decedent's will, if any, and all the proceedings, domiciliary or ancillary, for the administration of the decedent's estate that are set forth in the Revised Code for use upon the death of a decedent, shall upon the signing of the decree of presumed death be instituted and carried on in the same manner as if the presumed decedent were in fact dead. All acts pursuant to these proceedings shall be as valid as if the presumed decedent were in fact dead.

(B) Following the decree the court may make any supplementary orders that in its discretion are necessary to consummate any right or interest arising by reason of the death of the presumed decedent under any contract, trust, or other nonprobate property interest of any person or entity who was a party to the proceedings. The court may condition the granting of that order by requiring any person or entity who would benefit by the order to furnish bond for a three-year period after the decree in the form and amount, with or without sureties, as the court shall order. If any supplementary order is directed to the holder of assets of the presumed decedent that were created by the decree of presumed death, the court, at the request of the party defendant to whom the order is directed, shall condition the granting of that order by requiring any person or entity who would benefit by the order to furnish a suretyship bond for a three-year period after the decree in the amount of the assets so created by the decree with interest for the period of the bond at the rate specified in the order.

(C) The term "assets of the presumed decedent that were created by the decree of presumed death" as used in division (B) of this section and division (D) of section 2121.08 of the Revised Code, means those potential assets of the presumed decedent in which the presumed decedent had a contractual or other right, contingent upon the presumed decedent's death, to have those assets paid to the presumed decedent's designee and the decree of presumed death would fulfill the contingency. Only that portion of the proceeds of life insurance policies on the life of the presumed decedent that exceeds any net cash surrender value of the policies on the date of the decree is within the definition of the term "assets of the presumed decedent that were created by the decree of presumed death."

(D) The bond shall provide that, if within the three-year period after the decree is entered by the court it is established that the presumed decedent is alive, the person or entity shall on the subsequent order of the court refund or return any sums, with interest as provided in the court order, or property received by virtue of the order, to the presumed decedent or to the person or entity who, by reason of the erroneous finding of death of the presumed decedent, made the payment or delivered the property. The bond shall be further conditioned on returning the fair value of the property if the same shall have been sold or otherwise disposed of in the interim.

(E) If the person or entity who would benefit by an order, as provided in division (B) of this section, fails to provide a bond for the amount of the assets of the presumed decedent that were created by the decree, with interest as specified in the order, the holder shall hold those assets for the three-year period they would have been bonded. In that event, the holder shall pay interest at the same rate specified in the order as a condition of the bond and the interest shall accumulate and be held throughout that period.

(F) Nothing in this section shall preclude the person or entity from selling, encumbering, or otherwise disposing of any property so received and any purchaser, transferee, or mortgagee acquires good title to the property free and clear of any claim of the presumed decedent.

Section 2121.06 | Descent of real property.

• Effective: January 13, 2012
• Latest Legislation: Senate Bill 124 - 129th General Assembly

Upon the signing of the decree establishing the death of the presumed decedent, the real property of the presumed decedent passes and devolves as in the case of actual death, and the persons entitled by will, or under Chapter 2105. of the Revised Code, may enter and take possession. Persons taking the real property may sell or mortgage it and the purchaser or mortgagee takes a good title, free and discharged of any interest or claim of the presumed decedent. The persons taking the real property shall not sell, convey, or mortgage any part of the property within the three-year period specified in section 2121.08 of the Revised Code without first giving bond in an amount to be fixed by the probate court and with sureties to be approved by the court. In the discretion of the court the bond may be taken without sureties. The bond shall be conditioned to account for and pay over to the presumed decedent, in case within the three-year period after the decree is entered by the court it is established that the presumed decedent is still alive, the value of the real property sold or conveyed, or in the case of the making of a mortgage, to pay the amount of the mortgage and interest on the mortgage, or in case of a foreclosure of that mortgage, to account for and pay over the value of the real property mortgaged.

Section 2121.07 | Bond required for distribution of estate.

• Effective: September 30, 1974
• Latest Legislation: Senate Bill 349 - 110th General Assembly

(A) Before any distribution of personal property is made from the estate of a presumed decedent, the persons entitled to receive such property may in the discretion of the court and as a condition of distribution be required to give bond in the form and amount, with or without sureties, as the court orders, with the condition that if within a three-year period after the decree is entered by the court it is established that the presumed decedent is alive, the distributee will upon subsequent order of the court refund or return the property to the presumed decedent, or the fair market value of property if the same shall have been sold or otherwise disposed of in the interim.

(B) Nothing in this section shall preclude a distributee from selling, encumbering, or otherwise disposing of any property so distributed and any purchaser, transferee, or mortgagee acquires good title to such property free and clear of any claim of the presumed decedent.

Section 2121.08 | Administering estate when decree vacated.

• Effective: January 13, 2012
• Latest Legislation: Senate Bill 124 - 129th General Assembly

(A) The probate court may at any time within a three-year period from the date of the decree establishing the death of a presumed decedent, upon proof satisfactory to the court that the presumed decedent is in fact alive, vacate the decree establishing the presumption of death. After the decree has been vacated all the powers of the executor or administrator of the presumed decedent cease, but all proceedings had and steps taken with respect to the administration of the estate of the presumed decedent prior to the vacating of the decree remain valid. The executor or administrator of the estate of the presumed decedent who is found to be alive shall settle the account of the executor's or administrator's administration down to the time of the vacating of the decree and shall transfer all assets remaining in the possession or under the control of the executor or administrator to the person for whom the executor or administrator is acting, or to that person's authorized agent or attorney.

(B) The title of any person to any money, property, right, or interest as surviving spouse, next of kin, heir, legatee, devisee, co-owner with right of survivorship, beneficiary or other contractual payee, successor to a trust interest, or otherwise of the presumed decedent shall be subject to this section, and upon vacating of the decree as provided in this section any property, money, right, or interest, or its fair value if the same shall have been sold or otherwise disposed of, may be recovered from the person who had received that property, money, right, or interest.

(C) Except as provided in division (D) of this section, in any action against a beneficiary for the recovery of property or the value of the property, or upon the bond given as condition for delivery of money, other personal property, or sale or encumbrance of real property, the beneficiary may set off as against that claim, an allowance for services rendered in maintaining or preserving the property, and for any moneys or other considerations made or given by the beneficiary for the preservation, care, or maintenance of the property during the period of absence of the person erroneously presumed to be dead, and the reasonable value of any part of the property used for support by those whom the person erroneously presumed to be dead had a legal obligation to support during the person's absence.

(D) There shall be no set off as against those assets defined in division (C) of section 2121.05 of the Revised Code to be assets of the presumed decedent that were created by the decree of presumed death. Those assets created by the erroneous decree of presumed death shall be returned with interest to the person entitled to them.

(E) Any net cash surrender value on any policies of life insurance on the life of a person erroneously presumed to be dead are subject to the set off provision in division (C) of this section. The person erroneously presumed to be dead, or persons claiming under the person erroneously presumed to be dead, may recover whatever remains of cash values from the person to whom paid. The claimants have no recourse against the insurance company that made the payments, and it is discharged from liability on the policies affected.

Section 2121.09 | Substituting presumed decedent as plaintiff or defendant.

• Effective: January 13, 2012
• Latest Legislation: Senate Bill 124 - 129th General Assembly

After vacation of the decree of the presumption of death has been established, as provided by section 2121.08 of the Revised Code, the person erroneously presumed to be dead, on motion filed of record stating the facts, may be substituted as plaintiff or petitioner in all actions or proceedings brought by the executor or administrator, whether prosecuted to judgment or decree or otherwise. That person, in all actions or proceedings previously brought against the executor or administrator, may be substituted as defendant or respondent, on motion filed by the person or on the person's behalf, but shall not be compelled to go to trial in less than three months from the time of filing of the motion. Judgments or decrees recovered against the executor or administrator, before the vacation of the decree, may be opened on application made by the person erroneously presumed to be dead within three months after the vacating of the decree, provided it is supported by an affidavit alleging the existence of facts that would be a valid defense. If the application is not made within the three months or is made but the supporting alleged facts are adjudged an insufficient defense, the judgment or decree is conclusive to all intents, saving the defendant's right to review as in other cases on appeal.