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           

                                                          2      


                                                                 
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          

                                                          3      


                                                                 
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          

                                                          4      


                                                                 
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          

                                                          5      


                                                                 
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          

                                                          6      


                                                                 
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          

                                                          7      


                                                                 
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          

                                                          11     


                                                                 
      (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          

                                                          12     


                                                                 
      (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.                                                                      

                                                          14     


                                                                 
      (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.