As Passed by the House 1
123rd General Assembly 4
Regular Session Sub. H. B. No. 59 5
1999-2000 6
REPRESENTATIVES WOMER BENJAMIN-MOTTLEY-PRINGLE-SALERNO- 8
DePIERO-CORE-D.MILLER-JONES 9
_________________________________________________________________ 10
A B I L L
To amend sections 1340.01, 1340.02, 1340.03, 12
1340.09, 1340.12, 2103.041, 2107.26, 2107.33, and 14
2109.67, to enact new section 2131.01 and section
1340.031, and to repeal section 2131.01 of the 16
Revised Code to revise the Probate Laws. 17
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 19
Section 1. That sections 1340.01, 1340.02, 1340.03, 21
1340.09, 1340.12, 2103.041, 2107.26, 2107.33, and 2109.67 be 23
amended and new section 2131.01 and section 1340.031 of the 24
Revised Code be enacted to read as follows: 25
Sec. 1340.01. As used in sections 1340.01 to 1340.13 of 34
the Revised Code: 35
(A) "Income beneficiary" means the person to whom income 37
is presently payable or for whom it is accumulated for 38
distribution as income. 39
(B) "Inventory value" means the cost of property purchased 41
by the trustee and the market value of other property at the time 42
it became subject to the trust, but, in the case of property 43
which THAT passes or has passed to the trust as the result of a 45
decedent's death, the trustee may use any value finally 46
determined for the purposes of an estate or inheritance tax. 47
(C) "Remainderman REMAINDERPERSON" means the person 49
entitled to principal, including income which THAT has been 50
accumulated and added to principal. 52
(D) "Trustee" means an inter vivos or testamentary trustee 54
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and includes an original trustee and any successor or added 55
trustee. 56
(E) "QUALIFIED BENEFICIARY" MEANS A BENEFICIARY WHO IS 58
ENTITLED OR ELIGIBLE TO RECEIVE A DISTRIBUTION OF INCOME OR 59
PRINCIPAL WHETHER PRESENTLY OR AT SOME FUTURE TIME THAT IS 61
PREDICATED UPON THE HAPPENING OF AN EVENT THAT IS CERTAIN. AN 62
EVENT THAT IS CERTAIN INCLUDES, BUT IS NOT LIMITED TO, THE
TERMINATION OF AN INTERVENING LIFE ESTATE. IF A TRUST IS SUBJECT 63
TO AMENDMENT OR REVOCATION BY THE GRANTOR, THEN ONLY THE GRANTOR 64
SHALL BE DEEMED TO BE A QUALIFIED BENEFICIARY. 65
(F) "LEGAL REPRESENTATIVE" INCLUDES, BUT IS NOT LIMITED 67
TO, A PARENT AS A NATURAL GUARDIAN OF A MINOR CHILD UNDER SECTION 68
2111.08 OF THE REVISED CODE, AN ATTORNEY-AT-LAW, A GUARDIAN 69
APPOINTED PURSUANT TO COURT ORDER, INCLUDING A GUARDIAN OF THE 70
PERSON OR A GUARDIAN OF THE ESTATE, OR A GUARDIAN AD LITEM. 71
Sec. 1340.02. (A) A trust shall be administered with due 80
regard to the respective interests of income beneficiaries and 81
remaindermen REMAINDERPERSONS. A trust is so administered with 82
respect to the allocation of receipts and expenditures if a 83
receipt is credited or an expenditure is charged to income or 84
principal or partly to each IN ONE OF THE FOLLOWING MANNERS: 85
(1) In accordance with the terms of the trust instrument, 87
notwithstanding contrary provisions of sections 1340.01 to 88
1340.13 of the Revised Code; 89
(2) In the absence of any contrary terms of the trust 91
instrument, in accordance with sections 1340.01 to 1340.13 of the 92
Revised Code; 93
(3) If neither of the preceding rules of administration is 95
applicable,. 96
(B) IN EXERCISING A DISCRETIONARY POWER OF ADMINISTRATION 99
REGARDING A MATTER WITHIN THE SCOPE OF SECTIONS 1340.01 TO 100
1340.13 OF THE REVISED CODE, WHETHER GRANTED BY THE TERMS OF THE 103
TRUST INSTRUMENT OR BY THOSE SECTIONS, A TRUSTEE SHALL ADMINISTER 104
THE TRUST in accordance with what is reasonable and equitable in 106
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view of the interests of those entitled to income as well as
those entitled to principal, and in view of the manner in which 107
men PERSONS of ordinary prudence, discretion, and judgment would 108
act in the management of their own affairs. 109
(B)(C) If the trust instrument gives the trustee 111
discretion in crediting a receipt or charging an expenditure to 112
income or principal or partly to each, unless the terms of the 113
trust instrument otherwise expressly provide, the trustee shall 114
exercise such discretion in accordance with the principles of 115
sections 1340.01 to 1340.13 of the Revised Code, but in the event 116
of a bona fide doubt as to the applicability of sections 1340.01 117
to 1340.13 of the Revised Code, any allocation made by the 118
trustee in good faith shall be binding on all persons having any 119
interest in the trust NO INFERENCE OF IMPRUDENCE OR PARTIALITY 120
ARISES FROM THE FACT THAT THE TRUSTEE HAS MADE AN ALLOCATION 122
CONTRARY TO SECTIONS 1340.01 TO 1340.13 OF THE REVISED CODE. 125
(D) A FIDUCIARY MAY CREDIT A RECEIPT OR CHARGE AN 128
EXPENDITURE TO INCOME OR PRINCIPAL WITH RESPECT TO A TRUST, OR 129
PROPERTY PASSING TO A TRUST, THAT IS ELIGIBLE FOR A FEDERAL OR 130
OHIO ESTATE TAX MARITAL DEDUCTION OR ESTATE TAX CHARITABLE 131
DEDUCTION ONLY TO THE EXTENT THAT THE CREDIT OF THE RECEIPT OR 133
CHARGE OF THE EXPENDITURE WILL NOT CAUSE THE REDUCTION OR LOSS OF 134
THE DEDUCTION.
(E) AS USED IN THIS SECTION: 137
(1) "FEDERAL ESTATE TAX CHARITABLE DEDUCTION" MEANS THE 139
ESTATE TAX CHARITABLE DEDUCTION ALLOWED BY SUBTITLE B, CHAPTER 11 142
OF THE "INTERNAL REVENUE CODE OF 1986," 26 U.S.C.A. 2055, AS 147
AMENDED.
(2) "FEDERAL ESTATE TAX MARITAL DEDUCTION" MEANS THE 149
ESTATE TAX MARITAL DEDUCTION ALLOWED BY SUBTITLE B, CHAPTER 11 OF 152
THE "INTERNAL REVENUE CODE OF 1986," 26 U.S.C.A. 2056, AS 157
AMENDED.
(3) "OHIO ESTATE TAX CHARITABLE DEDUCTION" MEANS THE 160
ESTATE TAX CHARITABLE DEDUCTION ALLOWED BY DIVISION (A) OF 161
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SECTION 5731.17 OF THE REVISED CODE. 163
(4) "OHIO ESTATE TAX MARITAL DEDUCTION" MEANS THE ESTATE 166
TAX MARITAL DEDUCTION ALLOWED BY DIVISION (A) OF SECTION 5731.15 168
OF THE REVISED CODE. 169
Sec. 1340.03. (A) Income is the return in money or 178
property derived from the use of principal, including return as 179
FOLLOWS: 180
(1) Rent of real or personal property, including sums 182
received for cancellation or renewal of a lease; 183
(2) Interest on money lent, including sums received as 185
consideration for the privilege of prepayment of principal except 186
as provided in section 1340.06 of the Revised Code on bond 187
premium and bond discount; 188
(3) Income earned during administration of a decedent's 190
estate as provided in section 2109.67 of the Revised Code; 191
(4) Corporate distributions as provided in section 1340.05 193
of the Revised Code; 194
(5) Accrued increment on bonds or other obligations issued 196
at a discount as provided in section 1340.06 of the Revised Code; 197
(6) Receipts from business and farming operations as 199
provided in section 1340.07 of the Revised Code; 200
(7) Receipts from disposition of natural resources as 202
provided in sections 1340.08 and 1340.09 of the Revised Code; 203
(8) Receipts from other principal subject to depletion as 205
provided in section 1340.10 of the Revised Code; 206
(9) Receipts from disposition of underproductive property 208
as provided in section 1340.11 of the Revised Code. 209
(B) Principal is the property that has been set aside by 211
the owner or the person legally empowered so that it is held in 212
trust eventually to be delivered to a remainderman 213
REMAINDERPERSON while the return or use of the principal is in 214
the meantime taken or received by or held for accumulation for an 215
income beneficiary. Principal includes any of the following: 216
(1) Consideration received by the trustee on the sale or 218
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other transfer of principal or on repayment of a loan or as a 219
refund or replacement or change in the form of principal; 220
(2) Proceeds of property taken on eminent domain 222
proceedings; 223
(3) Proceeds of insurance upon property forming part of 225
the principal, except proceeds of insurance upon a separate 226
interest of an income beneficiary; 227
(4) Stock dividends, receipts on liquidation of a 229
corporation, and other corporate distributions as provided in 230
section 1340.05 of the Revised Code; 231
(5) Receipts from the disposition of corporate securities 233
as provided in section 1340.06 of the Revised Code; 234
(6) Royalties and other receipts from disposition of 236
natural resources as provided in sections 1340.08 and 1340.09 of 237
the Revised Code; 238
(7) Receipts from other principal subject to depletion as 240
provided in section 1340.10 of the Revised Code; 241
(8) Any profit resulting from any change in the form of 243
principal except as provided in section 1340.11 of the Revised 244
Code on underproductive property; 245
(9) Receipts from disposition of underproductive property 247
as provided in section 1340.11 of the Revised Code; 248
(10) Any allowances for depreciation established under 250
section 1340.07 and division (A)(2) of section 1340.12 of the 251
Revised Code. 252
(C) After determining income and principal in accordance 254
with the terms of the trust instrument or of sections 1340.01 to 255
1340.13 of the Revised Code, the trustee shall charge to income 256
or principal expenses and other charges as provided in section 257
1340.12 of the Revised Code. 258
Sec. 1340.031. (A) NOT MORE THAN ONCE EVERY SIX MONTHS, A 260
QUALIFIED BENEFICIARY OR, IF A QUALIFIED BENEFICIARY IS UNDER A 262
LEGAL DISABILITY, A LEGAL REPRESENTATIVE OF THE QUALIFIED 263
BENEFICIARY MAY REQUEST IN WRITING THAT AN INTER VIVOS TRUSTEE 264
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FURNISH THE QUALIFIED BENEFICIARY OR LEGAL REPRESENTATIVE A 266
REPORT OF THE MANAGEMENT OF THE INTER VIVOS TRUST AS PROVIDED IN 267
THIS SECTION. WITHIN THIRTY DAYS AFTER RECEIVING THE WRITTEN 268
REQUEST FOR A REPORT OF THE MANAGEMENT OF THE INTER VIVOS TRUST, 269
THE INTER VIVOS TRUSTEE SHALL FURNISH THE QUALIFIED BENEFICIARY 270
OR LEGAL REPRESENTATIVE THAT MADE THE REQUEST A REPORT THAT IS 271
CURRENT TO WITHIN FIVE MONTHS PRIOR TO THE DATE OF THE REQUEST 272
AND THAT SHOWS AN INVENTORY OF THE TRUST PROPERTY AND THE 273
RECEIPTS CREDITED AND EXPENDITURES CHARGED TO INCOME OR PRINCIPAL 275
WITH RESPECT TO THE INTER VIVOS TRUST. IF THE INTER VIVOS
TRUSTEE DOES NOT COMPLY WITH THE REQUEST FOR A REPORT UNDER THIS 277
SECTION, THE QUALIFIED BENEFICIARY OR LEGAL REPRESENTATIVE THAT 278
MADE THE REQUEST MAY FILE AN APPROPRIATE ACTION IN A COURT OF 279
COMPETENT JURISDICTION TO COMPEL THE INTER VIVOS TRUSTEE TO 280
FURNISH THE REPORT. 281
(B) A CURRENT REPORT FURNISHED BY AN INTER VIVOS TRUSTEE 283
UNDER THIS SECTION OR DURING THE USUAL COURSE OF BUSINESS HAS 284
BINDING LEGAL EFFECT REGARDING MATTERS DESCRIBED OR DISCLOSED IN 285
THE REPORT ON THE QUALIFIED BENEFICIARY WHO RECEIVED THE REPORT, 286
ON THE LEGAL REPRESENTATIVE WHO RECEIVED THE REPORT ON BEHALF OF 287
THE QUALIFIED BENEFICIARY WHO IS UNDER LEGAL DISABILITY, AND ON 288
THE HEIRS AND ASSIGNS OF THE QUALIFIED BENEFICIARY WHO RECEIVED 289
THE REPORT UNLESS, NOTWITHSTANDING SECTION 2305.22 OF THE REVISED 290
CODE, THE QUALIFIED BENEFICIARY, THE LEGAL REPRESENTATIVE OF THE 292
QUALIFIED BENEFICIARY, OR ANY OF THE HEIRS OR ASSIGNS OF THE
QUALIFIED BENEFICIARY INSTITUTES AN ACTION REGARDING MATTERS 293
DESCRIBED OR DISCLOSED IN THE REPORT AGAINST THE INTER VIVOS 294
TRUSTEE WITHIN TWO YEARS FROM THE DATE THE REPORT IS FURNISHED TO 296
THE QUALIFIED BENEFICIARY OR LEGAL REPRESENTATIVE OF THE
QUALIFIED BENEFICIARY. 297
(C) NO PROVISION IN THIS SECTION ELIMINATES ANY OTHER 299
RIGHTS OR CAUSES OF ACTION THAT A QUALIFIED BENEFICIARY OF AN 300
INTER VIVOS TRUST, A LEGAL REPRESENTATIVE OF A QUALIFIED 301
BENEFICIARY OF AN INTER VIVOS TRUST, OR ANY OF THE HEIRS OR 302
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ASSIGNS OF A QUALIFIED BENEFICIARY OF AN INTER VIVOS TRUST MAY 303
HAVE AGAINST THE INTER VIVOS TRUSTEE UNDER ANY OTHER SECTION OF 304
THE REVISED CODE.
Sec. 1340.09. If any part of the principal consists of 313
land from which merchantable timber may be removed, the receipts 314
from taking the timber from the land shall be allocated in 315
accordance with division (A)(3)(B) of section 1340.02 of the 317
Revised Code.
Sec. 1340.12. (A) The following charges shall be made 326
against income: 327
(1) Ordinary expenses incurred in connection with the 329
administration, management, or preservation of the trust 330
property, including regularly recurring taxes assessed against 331
any portion of the principal, water rates, premiums on insurance 332
taken upon the interests of the income beneficiary, remainderman 333
REMAINDERPERSON, or trustee, interest paid by the trustee, and 334
ordinary repairs; 335
(2) A reasonable allowance for depreciation on property 337
subject to depreciation under generally accepted accounting 338
principles, but no allowance shall be made for depreciation of 339
that portion of any real property used by a beneficiary as a 340
residence or for depreciation of any property held by the trustee 341
on the effective date of this section OCTOBER 20, 1987, for which 343
the trustee is not then making an allowance for depreciation; 344
(3) Not less than half of court costs, attorney's fees, 346
and other fees on periodic judicial accounting, unless the court 347
directs otherwise; 348
(4) Court costs, attorney's fees, and other fees on other 350
accountings or judicial proceedings if the matter primarily 351
concerns the income interest, unless the court directs otherwise; 352
(5) Not less than half of the trustee's regular 354
compensation, whether based on a percentage of principal or 355
income, and all expenses reasonably incurred for current 356
management of principal and application of income, unless a court 357
8
otherwise directs; 358
(6) Any tax levied upon receipts defined as income under 360
sections 1340.01 to 1340.13 of the Revised Code or the trust 361
instrument and payable by the trustee. 362
(B) If charges against income are of unusual amount, the 364
trustee may, by means of reserves or other reasonable means, MAY 366
charge them over a reasonable period of time and withhold from 367
distribution sufficient sums to regularize distributions. 368
(C) The following charges shall be made against principal: 370
(1) Trustee's compensation not chargeable to income under 372
divisions (A)(4) and (5) of this section, special compensation of 373
trustees, expenses reasonably incurred in connection with 374
principal, court costs and attorney's fees primarily concerning 375
matters of principal, and trustee's compensation computed on 376
principal as an acceptance, distribution, or termination fee; 377
(2) Charges not provided for in division (A) of this 379
section, including the cost of investing and reinvesting 380
principal; the payment on principal of an indebtedness, including 381
a mortgage amortized by periodic payments of principal; expenses 382
for preparation of property for rental or sale; and, unless the 383
court directs otherwise, expenses incurred in maintaining or 384
defending any action to construe the trust or, TO protect it THE 386
TRUST or the TRUST property, or TO assure the title of any trust 387
property; 388
(3) Extraordinary repairs or expenses incurred in making a 390
capital improvement to principal, including special assessments, 391
but a trustee may establish an allowance for depreciation out of 392
income to the extent permitted by division (A)(2) of this section 393
and by section 1340.07 of the Revised Code; 394
(4) Any tax levied upon profit, gain, or other receipts 396
allocated to principal, notwithstanding denomination of the tax 397
as an income tax by the taxing authority; 398
(5) If an estate or inheritance tax is levied in WITH 400
respect of TO a trust in which both an income beneficiary and a 401
9
remainderman REMAINDERPERSON have an interest, any amount 403
apportioned to the trust, including penalties, even though the 405
income beneficiary also has rights in the principal. 406
(D) Regularly recurring charges payable from income shall 408
be apportioned to the same extent and in the same manner that 409
income is apportioned under section 1340.04 of the Revised Code. 410
Sec. 2103.041. In any action involving the judicical 419
JUDICIAL sale of real property for the purpose of satisfying the 420
claims of creditors of an owner of an interest in the property, 421
the spouse of the owner may be made a party to the action, and 422
the dower interest of the spouse, whether inchoate or otherwise, 423
may be subjected to the sale without the consent of the spouse. 424
The court shall determine the present value and priority of the 425
dower interest, using the American experience table of mortality 426
as the basis for determining the value, IN ACCORDANCE WITH 427
SECTION 2131.01 OF THE REVISED CODE and shall award the spouse a 428
sum of money equal to the present value of the dower interest, to 429
be paid out of the proceeds of the sale according to the priority 430
of the interest. To the extent that the owner and his THE 431
OWNER'S spouse are both liable for the indebtedness, the dower 433
interest of the spouse is subordinate to the claims of their 434
common creditors.
Sec. 2107.26. When an original will is lost, spoliated, or 443
destroyed subsequent to BEFORE OR AFTER the death of a testator, 444
or before the death of such testator if the testator's lack of 446
knowledge of such loss, spoliation, or destruction can be proved 447
by clear and convincing testimony, or after he became incapable
of making a will by reason of insanity, and such will cannot be 448
produced in the probate court in as complete a manner as the 449
originals of last wills and testaments which are actually 450
produced therein for probate, the PROBATE court may SHALL admit 452
such THE lost, spoliated, or destroyed will to probate, if such 453
court is satisfied the will was executed according to the law in 454
force at the time of its execution and not revoked at the death 455
10
of the testator BOTH OF THE FOLLOWING APPLY: 456
(A) THE PROPONENT OF THE WILL ESTABLISHES BY CLEAR AND 459
CONVINCING EVIDENCE BOTH OF THE FOLLOWING: 460
(1) THE WILL WAS EXECUTED WITH THE FORMALITIES REQUIRED AT 463
THE TIME OF EXECUTION BY THE JURISDICTION IN WHICH IT WAS 464
EXECUTED.
(2) THE CONTENTS OF THE WILL. 466
(B) NO PERSON OPPOSING THE ADMISSION OF THE WILL TO 469
PROBATE ESTABLISHES BY A PREPONDERANCE OF THE EVIDENCE THAT THE 470
TESTATOR HAD REVOKED THE WILL. 471
Sec. 2107.33. (A) A will shall be revoked by IN THE 480
FOLLOWING MANNERS: 481
(1) BY the testator by tearing, canceling, obliterating, 484
or destroying it with the intention of revoking it, or by; 485
(2) BY some person, AT THE REQUEST OF THE TESTATOR AND in 488
the testator's presence, or by TEARING, CANCELING, OBLITERATING, 490
OR DESTROYING IT WITH THE INTENTION OF REVOKING IT; 491
(3) BY SOME PERSON TEARING, CANCELING, OBLITERATING, OR 493
DESTROYING IT PURSUANT TO the testator's express written 495
direction, or by;
(4) BY some other written will or codicil, executed as 498
prescribed by sections 2107.01 to 2107.62 of the Revised Code, or 499
by THIS CHAPTER; 500
(5) BY some other writing that is signed, attested, and 503
subscribed in the manner provided by those sections THIS CHAPTER. 504
A
(B) A will that has been declared valid and is in the 507
possession of a probate judge may also MAY be revoked according 509
to division (C) of section 2107.084 of the Revised Code. 510
(B)(C) If a testator removes a will that has been declared 512
valid and is in the possession of a probate judge pursuant to 513
section 2107.084 of the Revised Code from the possession of the 514
judge, the declaration of validity that was rendered no longer 515
has any effect. 516
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(C)(D) If after executing a will, a testator is divorced, 518
obtains a dissolution of marriage, has his THE TESTATOR'S 519
marriage annulled, or, upon actual separation from his THE 521
TESTATOR'S spouse, enters into a separation agreement pursuant to 523
which the parties intend to fully and finally settle their 524
prospective property rights in the property of the other, whether 525
by expected inheritance or otherwise, any disposition or 526
appointment of property made by the will to the former spouse or 527
to a trust with powers created by or available to the former 528
spouse, any provision in the will conferring a general or special 529
power of appointment on the former spouse, and any nomination in 530
the will of the former spouse as executor, trustee, or guardian, 531
shall be revoked unless the will expressly provides otherwise. 532
(D)(E) Property prevented from passing to a former spouse 534
or to a trust with powers created by or available to the former 535
spouse because of revocation by this section shall pass as if the 536
former spouse failed to survive the decedent, and other 537
provisions conferring some power or office on the former spouse 538
shall be interpreted as if the spouse failed to survive the 539
decedent. If provisions are revoked solely by this section, they 540
shall be deemed to be revived by the testator's remarriage with 541
the former spouse or upon the termination of a separation 542
agreement executed by them. 543
(E)(F) A bond, agreement, or covenant made by a testator, 545
for a valuable consideration, to convey property previously 546
devised or bequeathed in a will, does not revoke the devise or 547
bequest. The property passes by the devise or bequest, subject to 548
the remedies on the bond, agreement, or covenant, for a specific 549
performance or otherwise, against the devisees or legatees, that 550
might be had by law against the heirs of the testator, or his THE 551
TESTATOR'S next of kin, if the property had descended to them. 553
(F)(G) A TESTATOR'S REVOCATION OF A WILL SHALL BE VALID 556
ONLY IF THE TESTATOR, AT THE TIME OF THE REVOCATION, HAS THE SAME 557
CAPACITY AS THE LAW REQUIRES FOR THE EXECUTION OF A WILL. 558
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(H) As used in this section: 560
(1) "Trust with powers created by or available to the 562
former spouse" means a trust that is revocable by the former 563
spouse, with respect to which the former spouse has a power of 564
withdrawal, or with respect to which the former spouse may take a 565
distribution that is not subject to an ascertainable standard but 566
does not mean a trust in which those powers of the former spouse 567
are revoked by section 1339.62 of the Revised Code or similar 568
provisions in the law of another state. 569
(2) "Ascertainable standard" means a standard that is 571
related to a trust beneficiary's health, maintenance, support, or 572
education. 573
Sec. 2109.67. (A) Unless the will otherwise provides and 582
subject to division (B) of this section, all expenses incurred in 583
connection with the settlement of a decedent's estate, including 584
debts, funeral expenses, estate taxes, penalties concerning 585
taxes, allowances to a surviving spouse, minor children, or both, 586
including, but not limited to, the allowance for support under 587
section 2106.13 of the Revised Code, fees of attorneys and 588
personal representatives, and court costs shall be charged 589
against the principal of the estate. 590
(B) Unless the will otherwise provides, income from the 592
assets of a decedent's estate after the death of the testator and 593
before distribution, including income from property used to 594
discharge liabilities, shall be determined in accordance with the 595
rules applicable to a trustee under Chapter 1340. of the Revised 596
Code and distributed as follows: 597
(1) To specific legatees and devisees, the income from the 599
property bequeathed or devised to them respectively, less 600
property taxes, ordinary repairs, interest, and other expenses of 601
management and operation of the property, and an appropriate 602
portion of taxes imposed on income, excluding taxes on capital 603
gains, income in respect of a decedent, and other items allocable 604
to principal, which accrue during the period of administration; 605
13
(2)(a) To all other legatees, except as provided in 607
division (B)(3)(2)(b) of this section, the balance of the income, 608
less the balance of property taxes, ordinary repairs, interest, 609
and other expenses of management and operation of all property 610
from which the estate is entitled to income, and taxes imposed on 611
income, excluding taxes on capital gains, income in respect of a 612
decedent, and other items allocable to principal, which accrue 613
during the period of administration, in proportion to their 614
respective interests in the undistributed assets of the estate, 615
computed at times of distribution on the basis of inventory 616
value; 617
(3)(b) A legatee, other than the testator's surviving 619
spouse, of a pecuniary legacy not in trust shall not be paid 620
interest on the legacy, and the legacy shall not be entitled to 621
receive any part of the income received by the estate during the 622
period of administration as income on the legacy. A legacy to 623
the testator's surviving spouse of a pecuniary amount shall carry 624
with it a proportionate part of the income of the estate from the 625
testator's death to the date of satisfaction, determined in 626
accordance with division (B)(2)(a) of this section. 627
(C) IF A WILL OR TRUST INSTRUMENT GIVES THE FIDUCIARY 629
DISCRETION IN CREDITING A RECEIPT OR CHARGING AN EXPENDITURE TO 630
INCOME OR PRINCIPAL OR PARTLY TO EACH, NO INFERENCE OF IMPRUDENCE 632
OR PARTIALITY ARISES FROM THE FACT THAT THE FIDUCIARY HAS MADE AN 633
ALLOCATION CONTRARY TO THIS SECTION, SECTION 2109.66, OR SECTIONS 634
1340.01 TO 1340.13 OF THE REVISED CODE. 635
(D) A FIDUCIARY MAY CREDIT A RECEIPT OR CHARGE AN 637
EXPENDITURE TO INCOME OR PRINCIPAL WITH RESPECT TO A DECEDENT'S 638
ESTATE, A TRUST UNDER A WILL, OR PROPERTY PASSING TO A TRUST 640
UNDER A WILL, THAT IS ELIGIBLE FOR A FEDERAL OR OHIO ESTATE TAX 641
MARITAL DEDUCTION OR ESTATE TAX CHARITABLE DEDUCTION ONLY TO THE
EXTENT THAT THE CREDIT OF THE RECEIPT OR CHARGE OF THE 643
EXPENDITURE WILL NOT CAUSE THE REDUCTION OR LOSS OF THE 644
DEDUCTION.
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(E) AS USED IN THIS SECTION, "FEDERAL ESTATE TAX 646
CHARITABLE DEDUCTION," "FEDERAL ESTATE TAX MARITAL DEDUCTION," 647
"OHIO ESTATE TAX CHARITABLE DEDUCTION," AND "OHIO ESTATE TAX 648
MARITAL DEDUCTION" HAVE THE SAME MEANINGS AS IN SECTION 1340.02 649
OF THE REVISED CODE. 650
Sec. 2131.01. PRESENT VALUES FOR PROBATE MATTERS SHALL BE 652
THE VALUES DETERMINED FOR OHIO ESTATE TAX PURPOSES PURSUANT TO 653
DIVISION (B) OF SECTION 5731.01 OF THE REVISED CODE. 656
Section 2. That existing sections 1340.01, 1340.02, 658
1340.03, 1340.09, 1340.12, 2103.041, 2107.26, 2107.33, and 659
2109.67 and section 2131.01 of the Revised Code are hereby 660
repealed.
Section 3. It is the intent of the General Assembly in 662
amending section 1340.02 of the Revised Code in this act to limit 663
the application of the holding of the Ohio Supreme Court in 664
Sherman v. Sherman (1966), 5 Ohio St.2d 27. 665
Section 4. Except as otherwise provided in this section, 667
section 1340.031 of the Revised Code, as enacted by this act, 668
applies to inter vivos trusts that are in existence or are 669
created on or after the effective date of this act. Division (B) 670
of section 1340.031 of the Revised Code, as enacted by this act, 671
applies to reports furnished by an inter vivos trustee as 672
provided in that section on or after the effective date of this 673
act.