As Reported by the Senate Judiciary Committee 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-SENATORS BLESSING-LATTA 9
_________________________________________________________________ 11
A B I L L
To amend sections 109.32, 1339.51, 1340.01, 1340.02, 13
1340.03, 1340.09, 1340.12, 1716.02, 1716.05, 14
1716.07, 1716.16, 1716.99, 2103.041, 2107.26, 15
2107.33, 2109.07, 2109.09, 2109.10, 2109.67, and 16
5103.16, to enact new section 2131.01 and section 17
1340.031, and to repeal section 2131.01 of the 19
Revised Code to revise the Probate Laws, to 20
change the name of the Charitable Foundations 21
Section of the Attorney General's office to the
Charitable Law Section, to exempt grandparents 22
from specified adoption requirements, and to 24
eliminate the generally required bond for an 25
administrator or executor of an estate who is the 26
sole beneficiary of the estate. 27
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 29
Section 1. That sections 109.32, 1339.51, 1340.01, 31
1340.02, 1340.03, 1340.09, 1340.12, 1716.02, 1716.05, 1716.07, 32
1716.16, 1716.99, 2103.041, 2107.26, 2107.33, 2109.07, 2109.09, 34
2109.10, 2109.67, and 5103.16 be amended and new section 2131.01 36
and section 1340.031 of the Revised Code be enacted to read as 37
follows:
Sec. 109.32. All annual filing fees obtained by the 46
attorney general pursuant to section 109.31 of the Revised Code, 48
all receipts obtained from the sale of the charitable foundations 49
LAW directory, and all registration fees received by the attorney 51
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general, bond forfeitures, awards of costs and attorney's fees,
and civil penalties assessed under Chapter 1716. of the Revised 52
Code shall be paid into the state treasury to the credit of the 53
charitable foundations LAW fund. The charitable foundations LAW 55
fund shall be used insofar as its moneys are available for the 57
expenses of the charitable foundations LAW section of the office 58
of the attorney general. The expenses of the charitable 59
foundations LAW section in excess of moneys available in the 61
charitable foundations LAW fund shall be paid out of regular 63
appropriations to the office of the attorney general.
Sec. 1339.51. (A) As used in this section: 72
(1) "Ascertainable standard" includes a standard in a 74
trust instrument requiring the trustee to provide for the care, 75
comfort, maintenance, welfare, education, or general well-being 76
of the beneficiary. 77
(2) "Disability" means any substantial, medically 79
determinable impairment that can be expected to result in death 80
or that has lasted or can be expected to last for a continuous 81
period of at least twelve months, except that "disability" does 82
not include an impairment that is the result of abuse of alcohol 83
or drugs. 84
(3) "Political subdivision" and "state" have the same 86
meanings as in section 2744.01 of the Revised Code. 87
(4) "Supplemental services" means services specified by 89
rule of the department of mental health under section 5119.01 of 90
the Revised Code or the department of mental retardation and 91
developmental disabilities under section 5123.04 of the Revised 92
Code that are provided to an individual with a disability in 93
addition to services he THE INDIVIDUAL is eligible to receive 94
under programs authorized by federal or state law. 96
(B) Any person may create a testamentary OR INTER VIVOS 98
trust under this section to provide funding for supplemental 100
services for the benefit of another individual who meets either 101
ANY of the following conditions: 103
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(1) The individual has a physical or mental disability and 105
is eligible to receive services through the department of mental 106
retardation and developmental disabilities or a county board of 107
mental retardation and developmental disabilities; 108
(2) THE INDIVIDUAL HAS A PHYSICAL OR MENTAL DISABILITY AND 110
IS ELIGIBLE TO RECEIVE BENEFITS, INCLUDING MEDICAID, THROUGH THE 111
DEPARTMENT OF HUMAN SERVICES. THE TRUST SHALL NOT RENDER THE 112
INDIVIDUAL INELIGIBLE FOR MEDICAID OR OTHER BENEFITS THROUGH THE 114
DEPARTMENT OF HUMAN SERVICES.
(3) The individual has a mental disability and is eligible 116
to receive services through the department of mental health or a 117
board of alcohol, drug addiction, and mental health services. 118
The trust may confer discretion upon the trustee and may 120
contain specific instructions or conditions governing the 121
exercise of the discretion. 122
(C) The general division of the court of common pleas and 124
the probate court of the county in which the beneficiary of a 125
trust authorized by division (B) of this section resides or is 126
confined have concurrent original jurisdiction to hear and 127
determine actions pertaining to the trust. In any action 128
pertaining to the trust in a court of common pleas or probate 129
court and in any appeal of the action, all of the following apply 130
to the trial or appellate court: 131
(1) The court shall render determinations consistent with 133
the testator's or other settlor's intent in creating the trust, 134
as evidenced by the terms of the trust instrument. 135
(2) The court may order the trustee to exercise discretion 137
that the trust instrument confers upon him THE TRUSTEE only if 138
the instrument contains specific instructions or conditions 140
governing the exercise of that discretion and the trustee has 141
failed to comply with the instructions or conditions. In issuing 142
an order pursuant to this division, the court shall require the 143
trustee to exercise his THE TRUSTEE'S discretion only in 144
accordance with the instructions or conditions. 146
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(3) The court may order the trustee OF A TESTAMENTARY 148
TRUST to maintain the trust and distribute assets in accordance 150
with rules adopted by the director of mental health under section 151
5119.01 of the Revised Code or the director of mental retardation 152
and developmental disabilities under section 5123.04 of the 153
Revised Code if the trustee has failed to comply with such rules. 154
(D) To the extent permitted by federal law and subject to 156
the provisions of division (C)(2) of this section pertaining to 157
the enforcement of specific instructions or conditions governing 158
a trustee's discretion, a trust authorized by division (B) of 159
this section that confers discretion upon the trustee shall not 160
be considered an asset or resource of the beneficiary, his THE 161
BENEFICIARY'S estate, or the testator's OR SETTLOR'S estate and 162
shall be exempt from the claims of creditors, political 165
subdivisions, the state, other governmental entities, and other 166
claimants against the beneficiary, his THE BENEFICIARY'S estate, 167
or the testator's OR SETTLOR'S estate, including claims based on 169
provisions of Chapters 5111., 5121., or AND 5123. of the Revised 171
Code and claims sought to be satisfied by way of a civil action, 172
subrogation, execution, garnishment, attachment, judicial sale, 173
or other legal process, if all of the following apply: 174
(1) At the time the A TESTAMENTARY trust is created, the 176
TESTAMENTARY trust principal does not exceed the maximum amount 178
determined under division (E) of this section;. 179
(2) The trust instrument contains a statement of the 181
testator's OR SETTLOR'S intent, or otherwise clearly evidences 182
his THE TESTATOR'S OR SETTLOR'S intent, that the beneficiary does 185
not have authority to compel the trustee under any circumstances 186
to furnish the beneficiary with minimal or other maintenance or 187
support, to make payments from the principal of the trust or from 188
the income derived from the principal, or to convert any portion 189
of the principal into cash, whether pursuant to an ascertainable 190
standard specified in the instrument or otherwise;. 191
(3) The testator OR SETTLOR is deceased;. 193
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(4) The trust instrument, IF TESTAMENTARY, provides that 195
trust assets can be used only to provide supplemental services, 197
as defined by rule of the director of mental health under section 198
5119.01 of the Revised Code or the director of mental retardation 199
and developmental disabilities under section 5123.04 of the 200
Revised Code, to the beneficiary;. 201
(5) The trust, IF TESTAMENTARY, is maintained and assets 203
are distributed in accordance with rules adopted by the director 205
of mental health under section 5119.01 of the Revised Code or the 206
director of mental retardation and developmental disabilities 207
under section 5123.04 of the Revised Code;. 208
(6) The trust instrument, IF TESTAMENTARY, provides that 210
on the death of the beneficiary, a portion of the remaining 212
assets of the trust, which shall be not less than fifty per cent 213
of such assets, will be deposited to the credit of the services 214
fund for individuals with mental illness created by section 215
5119.17 of the Revised Code or the services fund for individuals 216
with mental retardation and developmental disabilities created by 217
section 5123.40 of the Revised Code. 218
(E) In 1994, the trust principal maximum amount for a 220
TESTAMENTARY trust created under this section shall be two 221
hundred thousand dollars. The maximum amount for a TESTAMENTARY 222
trust created under this section prior to the effective date of 224
this amendment NOVEMBER 11, 1994, may be increased to two hundred 225
thousand dollars. 226
In 1995, the maximum amount for a TESTAMENTARY trust 228
created under this section shall be two hundred two thousand 230
dollars. Each year thereafter, the maximum amount FOR A 231
TESTAMENTARY TRUST shall be the prior year's amount plus two 232
thousand dollars.
(F) This section does not limit or otherwise affect the 234
creation, validity, interpretation, or effect of any trust that 235
is not created under this section. 236
Sec. 1340.01. As used in sections 1340.01 to 1340.13 of 245
6
the Revised Code: 246
(A) "Income beneficiary" means the person to whom income 248
is presently payable or for whom it is accumulated for 249
distribution as income. 250
(B) "Inventory value" means the cost of property purchased 252
by the trustee and the market value of other property at the time 253
it became subject to the trust, but, in the case of property 254
which THAT passes or has passed to the trust as the result of a 256
decedent's death, the trustee may use any value finally 257
determined for the purposes of an estate or inheritance tax. 258
(C) "Remainderman REMAINDERPERSON" means the person 260
entitled to principal, including income which THAT has been 261
accumulated and added to principal. 263
(D) "Trustee" means an inter vivos or testamentary trustee 265
and includes an original trustee and any successor or added 266
trustee. 267
(E) "QUALIFIED BENEFICIARY" MEANS A BENEFICIARY WHO IS 269
ENTITLED OR ELIGIBLE TO RECEIVE A DISTRIBUTION OF INCOME OR 270
PRINCIPAL WHETHER PRESENTLY OR AT SOME FUTURE TIME THAT IS 272
PREDICATED UPON THE HAPPENING OF AN EVENT THAT IS CERTAIN. AN 273
EVENT THAT IS CERTAIN INCLUDES, BUT IS NOT LIMITED TO, THE
TERMINATION OF AN INTERVENING LIFE ESTATE. IF A TRUST IS SUBJECT 274
TO AMENDMENT, APPOINTMENT, OR REVOCATION BY THE GRANTOR, THEN 275
ONLY THE GRANTOR SHALL BE DEEMED TO BE A QUALIFIED BENEFICIARY. 276
(F) "LEGAL REPRESENTATIVE" INCLUDES, BUT IS NOT LIMITED 278
TO, A PARENT AS A NATURAL GUARDIAN OF A MINOR CHILD UNDER SECTION 279
2111.08 OF THE REVISED CODE, AN ATTORNEY-AT-LAW, A GUARDIAN 280
APPOINTED PURSUANT TO COURT ORDER, INCLUDING A GUARDIAN OF THE 281
PERSON OR A GUARDIAN OF THE ESTATE, OR A GUARDIAN AD LITEM. 282
Sec. 1340.02. (A) A trust shall be administered with due 291
regard to the respective interests of income beneficiaries and 292
remaindermen REMAINDERPERSONS. A trust is so administered with 293
respect to the allocation of receipts and expenditures if a 294
receipt is credited or an expenditure is charged to income or 295
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principal or partly to each IN ONE OF THE FOLLOWING MANNERS: 296
(1) In accordance with the terms of the trust instrument, 298
notwithstanding contrary provisions of sections 1340.01 to 299
1340.13 of the Revised Code; 300
(2) In the absence of any contrary terms of the trust 302
instrument, in accordance with sections 1340.01 to 1340.13 of the 303
Revised Code; 304
(3) If neither of the preceding rules of administration is 306
applicable,. 307
(B) IN EXERCISING A DISCRETIONARY POWER OF ADMINISTRATION 310
REGARDING A MATTER WITHIN THE SCOPE OF SECTIONS 1340.01 TO 311
1340.13 OF THE REVISED CODE, WHETHER GRANTED BY THE TERMS OF THE 314
TRUST INSTRUMENT OR BY THOSE SECTIONS, A TRUSTEE SHALL ADMINISTER 315
THE TRUST in accordance with what is reasonable and equitable in 317
view of the interests of those entitled to income as well as
those entitled to principal, and in view of the manner in which 318
men PERSONS of ordinary prudence, discretion, and judgment would 319
act in the management of their own affairs. 320
(B)(C) If the trust instrument gives the trustee 322
discretion in crediting a receipt or charging an expenditure to 323
income or principal or partly to each, unless the terms of the 324
trust instrument otherwise expressly provide, the trustee shall 325
exercise such discretion in accordance with the principles of 326
sections 1340.01 to 1340.13 of the Revised Code, but in the event 327
of a bona fide doubt as to the applicability of sections 1340.01 328
to 1340.13 of the Revised Code, any allocation made by the 329
trustee in good faith shall be binding on all persons having any 330
interest in the trust NO INFERENCE OF IMPRUDENCE OR PARTIALITY 331
ARISES FROM THE FACT THAT THE TRUSTEE HAS MADE AN ALLOCATION 333
CONTRARY TO SECTIONS 1340.01 TO 1340.13 OF THE REVISED CODE. 336
(D) A FIDUCIARY MAY CREDIT A RECEIPT OR CHARGE AN 339
EXPENDITURE TO INCOME OR PRINCIPAL WITH RESPECT TO A TRUST, OR 340
PROPERTY PASSING TO A TRUST, THAT IS ELIGIBLE FOR A FEDERAL OR 341
OHIO ESTATE TAX MARITAL DEDUCTION OR ESTATE TAX CHARITABLE 342
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DEDUCTION ONLY TO THE EXTENT THAT THE CREDIT OF THE RECEIPT OR 344
CHARGE OF THE EXPENDITURE WILL NOT CAUSE THE REDUCTION OR LOSS OF 345
THE DEDUCTION.
(E) AS USED IN THIS SECTION: 348
(1) "FEDERAL ESTATE TAX CHARITABLE DEDUCTION" MEANS THE 350
ESTATE TAX CHARITABLE DEDUCTION ALLOWED BY SUBTITLE B, CHAPTER 11 353
OF THE "INTERNAL REVENUE CODE OF 1986," 26 U.S.C.A. 2055, AS 358
AMENDED.
(2) "FEDERAL ESTATE TAX MARITAL DEDUCTION" MEANS THE 360
ESTATE TAX MARITAL DEDUCTION ALLOWED BY SUBTITLE B, CHAPTER 11 OF 363
THE "INTERNAL REVENUE CODE OF 1986," 26 U.S.C.A. 2056, AS 368
AMENDED.
(3) "OHIO ESTATE TAX CHARITABLE DEDUCTION" MEANS THE 371
ESTATE TAX CHARITABLE DEDUCTION ALLOWED BY DIVISION (A) OF 372
SECTION 5731.17 OF THE REVISED CODE. 374
(4) "OHIO ESTATE TAX MARITAL DEDUCTION" MEANS THE ESTATE 377
TAX MARITAL DEDUCTION ALLOWED BY DIVISION (A) OF SECTION 5731.15 379
OF THE REVISED CODE. 380
Sec. 1340.03. (A) Income is the return in money or 389
property derived from the use of principal, including return as 390
FOLLOWS: 391
(1) Rent of real or personal property, including sums 393
received for cancellation or renewal of a lease; 394
(2) Interest on money lent, including sums received as 396
consideration for the privilege of prepayment of principal except 397
as provided in section 1340.06 of the Revised Code on bond 398
premium and bond discount; 399
(3) Income earned during administration of a decedent's 401
estate as provided in section 2109.67 of the Revised Code; 402
(4) Corporate distributions as provided in section 1340.05 404
of the Revised Code; 405
(5) Accrued increment on bonds or other obligations issued 407
at a discount as provided in section 1340.06 of the Revised Code; 408
(6) Receipts from business and farming operations as 410
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provided in section 1340.07 of the Revised Code; 411
(7) Receipts from disposition of natural resources as 413
provided in sections 1340.08 and 1340.09 of the Revised Code; 414
(8) Receipts from other principal subject to depletion as 416
provided in section 1340.10 of the Revised Code; 417
(9) Receipts from disposition of underproductive property 419
as provided in section 1340.11 of the Revised Code. 420
(B) Principal is the property that has been set aside by 422
the owner or the person legally empowered so that it is held in 423
trust eventually to be delivered to a remainderman 424
REMAINDERPERSON while the return or use of the principal is in 425
the meantime taken or received by or held for accumulation for an 426
income beneficiary. Principal includes any of the following: 427
(1) Consideration received by the trustee on the sale or 429
other transfer of principal or on repayment of a loan or as a 430
refund or replacement or change in the form of principal; 431
(2) Proceeds of property taken on eminent domain 433
proceedings; 434
(3) Proceeds of insurance upon property forming part of 436
the principal, except proceeds of insurance upon a separate 437
interest of an income beneficiary; 438
(4) Stock dividends, receipts on liquidation of a 440
corporation, and other corporate distributions as provided in 441
section 1340.05 of the Revised Code; 442
(5) Receipts from the disposition of corporate securities 444
as provided in section 1340.06 of the Revised Code; 445
(6) Royalties and other receipts from disposition of 447
natural resources as provided in sections 1340.08 and 1340.09 of 448
the Revised Code; 449
(7) Receipts from other principal subject to depletion as 451
provided in section 1340.10 of the Revised Code; 452
(8) Any profit resulting from any change in the form of 454
principal except as provided in section 1340.11 of the Revised 455
Code on underproductive property; 456
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(9) Receipts from disposition of underproductive property 458
as provided in section 1340.11 of the Revised Code; 459
(10) Any allowances for depreciation established under 461
section 1340.07 and division (A)(2) of section 1340.12 of the 462
Revised Code. 463
(C) After determining income and principal in accordance 465
with the terms of the trust instrument or of sections 1340.01 to 466
1340.13 of the Revised Code, the trustee shall charge to income 467
or principal expenses and other charges as provided in section 468
1340.12 of the Revised Code. 469
Sec. 1340.031. (A) NOT MORE THAN ONCE EVERY SIX MONTHS, A 471
QUALIFIED BENEFICIARY OR, IF A QUALIFIED BENEFICIARY IS UNDER A 473
LEGAL DISABILITY, A LEGAL REPRESENTATIVE OF THE QUALIFIED 474
BENEFICIARY MAY REQUEST IN WRITING THAT AN INTER VIVOS TRUSTEE 475
FURNISH THE QUALIFIED BENEFICIARY OR LEGAL REPRESENTATIVE A 477
REPORT OF THE MANAGEMENT OF THE INTER VIVOS TRUST AS PROVIDED IN 478
THIS SECTION. WITHIN THIRTY DAYS AFTER RECEIVING THE WRITTEN 479
REQUEST FOR A REPORT OF THE MANAGEMENT OF THE INTER VIVOS TRUST, 480
THE INTER VIVOS TRUSTEE SHALL FURNISH THE QUALIFIED BENEFICIARY 481
OR LEGAL REPRESENTATIVE THAT MADE THE REQUEST A REPORT THAT IS 482
CURRENT TO WITHIN FIVE MONTHS PRIOR TO THE DATE OF THE REQUEST 483
AND THAT SHOWS AN INVENTORY OF THE TRUST PROPERTY AND THE 484
RECEIPTS CREDITED AND EXPENDITURES CHARGED TO INCOME OR PRINCIPAL 486
WITH RESPECT TO THE INTER VIVOS TRUST FOR THE TWO YEARS PRIOR TO
THE PREPARATION OF THE REPORT. IF THE INTER VIVOS TRUSTEE DOES 488
NOT COMPLY WITH THE REQUEST FOR A REPORT UNDER THIS SECTION, THE 489
QUALIFIED BENEFICIARY OR LEGAL REPRESENTATIVE THAT MADE THE 491
REQUEST MAY FILE AN APPROPRIATE ACTION IN A COURT OF COMPETENT 492
JURISDICTION TO COMPEL THE INTER VIVOS TRUSTEE TO FURNISH THE 493
REPORT.
(B) A CURRENT REPORT FURNISHED BY AN INTER VIVOS TRUSTEE 495
UNDER THIS SECTION OR DURING THE USUAL COURSE OF BUSINESS HAS 496
BINDING LEGAL EFFECT REGARDING MATTERS DESCRIBED OR DISCLOSED IN 497
THE REPORT ON THE QUALIFIED BENEFICIARY WHO RECEIVED THE REPORT, 498
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ON THE LEGAL REPRESENTATIVE WHO RECEIVED THE REPORT ON BEHALF OF 499
THE QUALIFIED BENEFICIARY WHO IS UNDER LEGAL DISABILITY, AND ON 500
THE HEIRS AND ASSIGNS OF THE QUALIFIED BENEFICIARY WHO RECEIVED 501
THE REPORT UNLESS, NOTWITHSTANDING SECTION 2305.22 OF THE REVISED 502
CODE, THE QUALIFIED BENEFICIARY, THE LEGAL REPRESENTATIVE OF THE 504
QUALIFIED BENEFICIARY, OR ANY OF THE HEIRS OR ASSIGNS OF THE
QUALIFIED BENEFICIARY INSTITUTES AN ACTION REGARDING MATTERS 505
DESCRIBED OR DISCLOSED IN THE REPORT AGAINST THE INTER VIVOS 506
TRUSTEE WITHIN TWO YEARS FROM THE DATE THE REPORT IS FURNISHED TO 508
THE QUALIFIED BENEFICIARY OR LEGAL REPRESENTATIVE OF THE
QUALIFIED BENEFICIARY. 509
(C) NO PROVISION IN THIS SECTION ELIMINATES ANY OTHER 511
RIGHTS OR CAUSES OF ACTION THAT A QUALIFIED BENEFICIARY OF AN 512
INTER VIVOS TRUST, A LEGAL REPRESENTATIVE OF A QUALIFIED 513
BENEFICIARY OF AN INTER VIVOS TRUST, OR ANY OF THE HEIRS OR 514
ASSIGNS OF A QUALIFIED BENEFICIARY OF AN INTER VIVOS TRUST MAY 515
HAVE AGAINST THE INTER VIVOS TRUSTEE UNDER ANY OTHER SECTION OF 516
THE REVISED CODE.
Sec. 1340.09. If any part of the principal consists of 525
land from which merchantable timber may be removed, the receipts 526
from taking the timber from the land shall be allocated in 527
accordance with division (A)(3)(B) of section 1340.02 of the 529
Revised Code.
Sec. 1340.12. (A) The following charges shall be made 538
against income: 539
(1) Ordinary expenses incurred in connection with the 541
administration, management, or preservation of the trust 542
property, including regularly recurring taxes assessed against 543
any portion of the principal, water rates, premiums on insurance 544
taken upon the interests of the income beneficiary, remainderman 545
REMAINDERPERSON, or trustee, interest paid by the trustee, and 546
ordinary repairs; 547
(2) A reasonable allowance for depreciation on property 549
subject to depreciation under generally accepted accounting 550
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principles, but no allowance shall be made for depreciation of 551
that portion of any real property used by a beneficiary as a 552
residence or for depreciation of any property held by the trustee 553
on the effective date of this section OCTOBER 20, 1987, for which 555
the trustee is not then making an allowance for depreciation; 556
(3) Not less than half of court costs, attorney's fees, 558
and other fees on periodic judicial accounting, unless the court 559
directs otherwise; 560
(4) Court costs, attorney's fees, and other fees on other 562
accountings or judicial proceedings if the matter primarily 563
concerns the income interest, unless the court directs otherwise; 564
(5) Not less than half of the trustee's regular 566
compensation, whether based on a percentage of principal or 567
income, and all expenses reasonably incurred for current 568
management of principal and application of income, unless a court 569
otherwise directs; 570
(6) Any tax levied upon receipts defined as income under 572
sections 1340.01 to 1340.13 of the Revised Code or the trust 573
instrument and payable by the trustee. 574
(B) If charges against income are of unusual amount, the 576
trustee may, by means of reserves or other reasonable means, MAY 578
charge them over a reasonable period of time and withhold from 579
distribution sufficient sums to regularize distributions. 580
(C) The following charges shall be made against principal: 582
(1) Trustee's compensation not chargeable to income under 584
divisions (A)(4) and (5) of this section, special compensation of 585
trustees, expenses reasonably incurred in connection with 586
principal, court costs and attorney's fees primarily concerning 587
matters of principal, and trustee's compensation computed on 588
principal as an acceptance, distribution, or termination fee; 589
(2) Charges not provided for in division (A) of this 591
section, including the cost of investing and reinvesting 592
principal; the payment on principal of an indebtedness, including 593
a mortgage amortized by periodic payments of principal; expenses 594
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for preparation of property for rental or sale; and, unless the 595
court directs otherwise, expenses incurred in maintaining or 596
defending any action to construe the trust or, TO protect it THE 598
TRUST or the TRUST property, or TO assure the title of any trust 599
property; 600
(3) Extraordinary repairs or expenses incurred in making a 602
capital improvement to principal, including special assessments, 603
but a trustee may establish an allowance for depreciation out of 604
income to the extent permitted by division (A)(2) of this section 605
and by section 1340.07 of the Revised Code; 606
(4) Any tax levied upon profit, gain, or other receipts 608
allocated to principal, notwithstanding denomination of the tax 609
as an income tax by the taxing authority; 610
(5) If an estate or inheritance tax is levied in WITH 612
respect of TO a trust in which both an income beneficiary and a 613
remainderman REMAINDERPERSON have an interest, any amount 615
apportioned to the trust, including penalties, even though the 617
income beneficiary also has rights in the principal. 618
(D) Regularly recurring charges payable from income shall 620
be apportioned to the same extent and in the same manner that 621
income is apportioned under section 1340.04 of the Revised Code. 622
Sec. 1716.02. (A) Every charitable organization, except 631
those exempted under section 1716.03 of the Revised Code, that 632
intends to solicit contributions in this state by any means or 633
have contributions solicited in this state on its behalf by any 634
other person, charitable organization, commercial co-venturer, or 635
professional solicitor, or that participates in a charitable 636
sales promotion, prior to engaging in any of these activities and 637
annually thereafter, shall file a registration statement with the 638
attorney general upon a form prescribed by him THE ATTORNEY 639
GENERAL. Each chapter, branch, or affiliate of a charitable 640
organization that is required to file a registration statement 641
under this section either shall file a separate registration 642
statement or report the necessary information to its parent 643
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charitable organization that then shall file a consolidated 644
registration statement. The annual registration statement shall 645
be refiled on or before the fifteenth day of the fifth calendar 646
month after the close of each fiscal year in which the charitable 647
organization solicited in this state, or by the date of any 648
applicable extension of the federal filing date, whichever is 649
later. No charitable organization that is required to register 650
under this chapter prior to registration, shall solicit 651
contributions in this state by any means, have contributions 652
solicited in this state on its behalf by any other person, 653
charitable organization, commercial co-venturer, or professional 654
solicitor, or participate in a charitable sales promotion. 655
(B) The registration statement shall be signed and sworn 657
to under penalties of perjury by the treasurer or chief fiscal 658
officer of the charitable organization and shall contain the 659
following information: 660
(1) The name of the charitable organization, the purpose 662
for which it is organized, and the name or names under which it 663
intends to solicit contributions; 664
(2) The address and telephone number of the principal 666
place of business of the charitable organization and the address 667
and telephone number of every office, chapter, branch, or 668
affiliate of the charitable organization located in this state 669
or, if the charitable organization does not maintain an office in 670
this state, the name, address, and telephone number of the person 671
that has custody of its financial records; 672
(3) The names and addresses of the officers, directors, 674
trustees, and executive personnel of the charitable organization; 675
(4) The annual financial report of the charitable 677
organization for the immediately preceding fiscal year as 678
required under section 1716.04 of the Revised Code; 679
(5) The last day of the fiscal year for the charitable 681
organization; 682
(6) A statement of whether the charitable organization is 684
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registered with or otherwise authorized by any other governmental 685
authority in this state or another state to solicit 686
contributions; 687
(7) A statement of whether the charitable organization has 689
had its registration or authority denied, suspended, revoked, or 690
enjoined by any court or other governmental authority in this 691
state or another state; 692
(8) A statement of whether the charitable organization 694
intends to solicit contributions from the public directly by 695
using its own resources or to have solicitations made on its 696
behalf through the use of another charitable organization, 697
fund-raising counsel, professional solicitors, or commercial 698
co-venturers; 699
(9) The names, addresses, and the telephone numbers of any 701
other charitable organization, fund-raising counsel, professional 702
solicitors, and commercial co-venturers who act or will act on 703
behalf of the charitable organization, together with a statement 704
setting forth the specific terms of the arrangements for 705
salaries, bonuses, commissions, expenses, or other remunerations 706
to be paid the other charitable organization, fund-raising 707
counsel, professional solicitors, and commercial co-venturers. If 709
any of the information required by division (B)(9) of this
section is not available at the time of registration, that 710
information shall be submitted to the attorney general at a later 711
date but before any solicitation occurs. 712
(10) The charitable purpose or purposes for which the 714
contributions to be solicited will be used; 715
(11) The names, addresses, and telephone numbers of the 717
persons within the charitable organization that will have final 718
responsibility for the custody of the contributions; 719
(12) The names of the persons within the charitable 721
organization that will be responsible for the final distribution 722
of the contributions; 723
(13) The period of time during which, and the counties in 725
16
which, the solicitation is planned to be conducted; 726
(14) A schedule of the activities carried on by the 728
charitable organization in the performance of its purposes; 729
(15) Any other information that the attorney general may, 731
by rule, require. 732
(C)(1) With the initial registration only, every 734
charitable organization that is required to register under this 735
chapter also shall file with the attorney general the following: 736
(a) A copy of the current charter, articles of 738
incorporation, agreement of association, instrument of trust, 739
constitution, or other organizational instrument, and a copy of 740
the bylaws of the charitable organization; 741
(b) A statement setting forth the place where and the date 743
when the charitable organization was legally established, the 744
form of its organization, and its tax exempt status, with a copy 745
of its federal tax exemption determination letter. 746
(2)(a) With the next annual registration statement filed 748
after its adoption, the charitable organization shall file with 749
the attorney general a copy of any amendment to its 750
organizational instrument as specified in division (C)(1)(a) of 751
this section and a copy of any amendment to its bylaws. 752
(b) Within thirty days after its receipt, the charitable 754
organization shall file with the attorney general a copy of any 755
federal tax exemption determination letter or any correspondence 756
rescinding its tax exempt status that is received after the 757
initial registration. Not later than thirty days after being 758
notified by the internal revenue service of any challenge to or 759
investigation of its continued entitlement to federal tax 760
exemption, the charitable organization shall notify the attorney 761
general of this fact. 762
(D)(1) Except as otherwise provided in division (D)(2) of 764
this section, every charitable organization that is required to 765
register under this chapter shall pay the following fees with 766
each registration: 767
17
(a) Fifty dollars, if the contributions received for the 769
last calendar or fiscal year were five thousand dollars or more 770
but less than twenty-five thousand dollars; 771
(b) One hundred dollars, if the contributions received for 773
the last calendar or fiscal year were twenty-five thousand 774
dollars or more but less than fifty thousand dollars; 775
(c) Two hundred dollars, if the contributions received for 777
the last calendar or fiscal year were fifty thousand dollars or 778
more. 779
(2) A charitable organization that is required to register 781
under this chapter and whose contributions received for the last 782
calendar or fiscal year were less than five thousand dollars 783
shall not pay any registration fee. 784
(3) The amount of registration fees that a charitable 786
organization is required to pay under division (D)(1) of this 787
section shall be based on the amount of contributions that it 788
receives from persons in this state. If, for any reporting year, 789
a charitable organization cannot determine from its records the 790
exact amount of contributions it received from persons in this 791
state, it shall compute the amount of the registration fee upon 792
the estimated amount of contributions it received from persons in 793
this state, with the estimated amount to be explained in writing 794
at the time the registration fee is paid. At the request of the 795
attorney general, the charitable organization shall substantiate 796
the estimated amount of contributions it received from persons in 797
this state. 798
(4) All registration fees shall be paid into the state 800
treasury to the credit of the charitable foundations LAW fund 801
established under section 109.32 of the Revised Code. 802
Sec. 1716.05. (A) No person shall act as a fund-raising 811
counsel unless he THE PERSON first has complied with the 812
requirements of this chapter and any rules adopted under this 813
chapter.
(B) Any fund-raising counsel that at any time has custody 815
18
of contributions from a solicitation shall do all of the 816
following: 817
(1) Register with the attorney general. Applications for 819
registration or renewal of registration shall be in writing, 820
under oath, and in the form prescribed by the attorney general, 821
and shall be accompanied by a fee in the amount of two hundred 822
dollars. Any corporation, partnership, association, or other 823
entity that intends to act as a fund-raising counsel may register 824
for and pay a single fee of two hundred dollars on behalf of all 825
its members, officers, employees, and agents. In that case, the 826
names and addresses of all the officers, employees, and agents of 827
the fund-raising counsel and all other persons with whom the 828
fund-raising counsel has contracted to work under its direction 829
shall be listed in the application. The application shall 830
contain any other information that the attorney general may 831
require. The registration or renewal of registration shall be 832
for a period of one year or part of one year and shall expire on 833
the thirty-first day of March of each year. All fees prescribed 834
in this division shall be paid into the state treasury to the 835
credit of the charitable foundations LAW fund established under 836
section 109.32 of the Revised Code. 837
(2) At the time of making an application for registration 839
or renewal of registration, file with and have approved by the 840
attorney general a bond in which the fund-raising counsel shall 841
be the principal obligor, in the sum of twenty-five thousand 842
dollars, with one or more sureties authorized to do business in 843
this state. The fund-raising counsel shall maintain the bond in 844
effect as long as the registration is in effect; however, the 845
liability of the surety under the bond shall not exceed an 846
all-time aggregate liability of twenty-five thousand dollars. The 848
bond, which may be in the form of a rider to a larger blanket
liability bond, shall run to the state and to any person who may 849
have a cause of action against the principal obligor of the bond 850
for any liability arising out of a violation by the obligor of 851
19
any provision of this chapter or any rule adopted pursuant to 852
this chapter. 853
(3) Not later than ninety days after a solicitation 855
campaign has been completed and on the anniversary of the 856
commencement of a solicitation campaign lasting more than one 857
year, furnish an accounting of all contributions collected and 858
expenses paid, to the charitable organization with which the 859
fund-raising counsel has contracted. The accounting shall be in 860
writing and shall be retained by the charitable organization for 861
three years. The fund-raising counsel shall file a copy of the 862
accounting with the attorney general not later than seven days 863
after it is furnished to the charitable organization. 864
(4) Not later than two days after receipt of each 866
contribution, deposit the entire amount of the contribution in an 867
account at a bank or other federally insured financial 868
institution which shall be in the name of the charitable 869
organization with which the fund-raising counsel has contracted. 870
Each contribution collected by the fund-raising counsel shall be 871
solely in the name of that charitable organization. The 872
charitable organization shall have sole control of all 873
withdrawals from the account and the fund-raising counsel shall 874
not be given the authority to withdraw any deposited funds from 875
the account. 876
(5) During each solicitation campaign and for not less 878
than three years after its completion, maintain the following 879
records that shall be made available to the attorney general upon 880
his THE ATTORNEY GENERAL'S request: 881
(a) A record of each contribution that at any time is in 883
the custody of the fund-raising counsel, including the name and 884
address of each contributor and the date and amount of the 885
contribution, provided that the attorney general shall not 886
disclose that information except to the extent necessary for 887
investigative or law enforcement purposes; 888
(b) The location of each bank or financial institution in 890
20
which the fund-raising counsel has deposited revenue from the 891
solicitation campaign and the account number of each account in 892
which the deposits were made. 893
(C) Unless otherwise provided in this section, any change 895
in any information filed with the attorney general pursuant to 896
this section shall be reported in writing to the attorney general 897
within seven days after the change occurs. 898
(D) No person shall serve as a fund-raising counsel, or be 900
a member, officer, employee, or agent of any fund-raising 901
counsel, who has been convicted in the last five years of either 902
of the following: 903
(1) Any violation of this chapter or any rule adopted 905
under this chapter, or of any charitable solicitation legislation 906
or regulation of a political subdivision of this state or 907
charitable solicitation law of any other jurisdiction that is 908
similar to this chapter; 909
(2) A felony in this or another state. 911
(E) The information provided under this section to the 913
attorney general by a fund-raising counsel shall be included in 914
the reports and files required to be compiled and maintained by 915
the attorney general pursuant to divisions (E) and (F) of section 916
1716.08 of the Revised Code. 917
Sec. 1716.07. (A) No professional solicitor shall engage 926
in any solicitation unless it has complied with the requirements 927
of this chapter and any rules adopted under this chapter. 928
(B) Every professional solicitor, before engaging in any 930
solicitation, shall register with the attorney general. 931
Applications for registration or renewal of registration shall be 932
in writing, under oath, and in the form prescribed by the 933
attorney general, and shall be accompanied by a fee in the amount 934
of two hundred dollars. Any corporation, partnership, 935
association, or other entity that intends to act as a 936
professional solicitor may register for and pay a single fee of 937
two hundred dollars on behalf of all its members, officers, 938
21
employees, agents, and solicitors. In that case, the names and 939
addresses of all the officers, employees, and agents of the 940
professional solicitor and all other persons with whom the 941
professional solicitor has contracted to work under its 942
direction, including solicitors, shall be listed in the 943
application or furnished to the attorney general within five days 944
of the date of employment or contractual arrangement. The 945
application shall contain any other information that the attorney 946
general may require. The registration shall be for a period of 947
one year or part of one year and shall expire on the thirty-first 948
day of March of each year. Upon application and payment of the 949
fee specified in this division and filing of the bond prescribed 950
in division (C) of this section, the registration may be renewed 951
for additional one-year periods. All fees prescribed in this 952
division shall be paid into the state treasury to the credit of 953
the charitable foundations LAW fund established under section 954
109.32 of the Revised Code. 956
(C) At the time of making an application for registration 958
or renewal of registration, the professional solicitor shall file 959
with and have approved by the attorney general a bond in which 960
the professional solicitor shall be the principal obligor, in the 961
sum of twenty-five thousand dollars, with one or more sureties 962
authorized to do business in this state. The professional 963
solicitor shall maintain the bond in effect as long as the 964
registration is in effect; however, the liability of the surety 965
under the bond shall not exceed an all-time aggregate liability 966
of twenty-five thousand dollars. The bond, which may be in the 967
form of a rider to a larger blanket liability bond, shall run to 968
the state and to any person who may have a cause of action 969
against the principal obligor of the bond for any liability 970
arising out of a violation by the obligor of any provision of 971
this chapter or any rule adopted pursuant to this chapter. 972
(D)(1) Prior to the commencement of any solicitation, the 974
professional solicitor shall file all of the following with the 975
22
attorney general: 976
(a) A completed document called "Solicitation Notice" upon 978
a form prescribed by the attorney general and containing all of 979
the information specified in division (D)(2) of this section; 980
(b) A copy of the contract described in division (A) of 982
section 1716.08 of the Revised Code; 983
(c) A sworn statement by the charitable organization on 985
whose behalf the professional solicitor is acting certifying that 986
the solicitation notice and any accompanying material are true 987
and correct to the best of its knowledge. 988
(2) The solicitation notice shall include all of the 990
following: 991
(a) The fund-raising methods to be used; 993
(b) The projected dates when the solicitation will 995
commence and terminate; 996
(c) The location and telephone number from where the 998
solicitation will be conducted if it will be conducted by 999
telephone; 1,000
(d) The name and residence address of each person 1,002
responsible for directing and supervising the conduct of the 1,003
solicitation campaign; 1,004
(e) A statement of whether the professional solicitor will 1,006
at any time have custody of any contributions; 1,007
(f) A full and fair description of the charitable program 1,009
for which the solicitation campaign is being carried out; 1,010
(g) The written and signed consent of every charitable 1,012
organization on whose behalf the professional solicitor will be 1,013
soliciting contributions or whose name will be mentioned during 1,014
the solicitation. 1,015
(E) Not later than ninety days after a solicitation 1,017
campaign has been completed and on the anniversary of the 1,018
commencement of a solicitation campaign lasting more than one 1,019
year, the professional solicitor shall provide to the charitable 1,020
organization and file with the attorney general a financial 1,021
23
report of the campaign, including the gross revenue received and 1,022
an itemization of all expenses incurred. The report shall be 1,023
completed on a form prescribed by the attorney general and signed 1,024
by an authorized official of the professional solicitor who shall 1,025
certify under oath that the report is true and correct. 1,026
(F) Each contribution collected by or in the custody of 1,028
the professional solicitor shall be solely in the name of the 1,029
charitable organization on whose behalf the contribution was 1,030
solicited. Not later than two days after receipt of each 1,031
contribution, the professional solicitor shall deposit the entire 1,032
amount of the contribution in an account at a bank or other 1,033
federally insured financial institution, which shall be in the 1,034
name of that charitable organization. The charitable 1,035
organization shall have sole control of all withdrawals from the 1,036
account and the professional solicitor shall not be given the 1,037
authority to withdraw any deposited funds from the account. 1,038
(G)(1) During each solicitation campaign and for not less 1,040
than three years after its completion, the professional solicitor 1,041
shall maintain the following records: 1,042
(a) The name and, if known to the professional solicitor, 1,044
the address and telephone number of each contributor and the date 1,045
and amount of the contribution, provided that the attorney 1,046
general shall not disclose that information except to the extent 1,047
necessary for investigative or law enforcement purposes; 1,048
(b) The name and residence address of each employee, 1,050
agent, and any other person, however designated, who is involved 1,051
in the solicitation, the amount of compensation paid to each, and 1,052
the dates on which the payments were made; 1,053
(c) A record of all contributions that at any time are in 1,055
the custody of the professional solicitor; 1,056
(d) A record of all expenses incurred by the professional 1,058
solicitor for the payment of which the professional solicitor is 1,059
liable; 1,060
(e) A record of all expenses incurred by the professional 1,062
24
solicitor for the payment of which the charitable organization is 1,063
liable; 1,064
(f) The location of each bank or financial institution in 1,066
which the professional solicitor has deposited revenue from the 1,067
solicitation campaign and the account number of each account in 1,068
which the deposits were made; 1,069
(g) A copy of each pitch sheet or solicitation script used 1,071
during the solicitation campaign; 1,072
(h) If a refund of a contribution has been requested, the 1,074
name and address of each person requesting the refund, and if a 1,075
refund was made, its amount and the date it was made. 1,076
(i) Any other record of such information as the attorney 1,078
general may require. 1,079
(2) If the professional solicitor sells tickets to any 1,081
event and represents that the tickets will be donated for use by 1,082
another person, the professional solicitor also shall maintain 1,083
for the same period as specified in division (G)(1) of this 1,084
section the following records: 1,085
(a) The name and address of each contributor that 1,087
purchases or donates tickets and the number of tickets purchased 1,088
or donated by the contributor; 1,089
(b) The name and address of each organization that 1,091
receives the donated tickets for the use of others, and the 1,092
number of tickets received by the organization. 1,093
(3) Any of the records described in divisions (G)(1) and 1,095
(2) of this section shall be made available to the attorney 1,096
general upon his THE ATTORNEY GENERAL'S request and shall be 1,097
furnished to him THE ATTORNEY GENERAL within ten days of the 1,098
request. 1,099
(H) Unless otherwise provided in this section or section 1,101
1716.08 of the Revised Code, any change in any information filed 1,102
with the attorney general pursuant to this section and section 1,103
1716.08 of the Revised Code shall be reported in writing to the 1,104
attorney general within seven days after the change occurs. 1,105
25
(I) No person shall serve as a professional solicitor, or 1,107
be a member, officer, employee, or agent of any professional 1,108
solicitor, who has been convicted in the last five years of 1,109
either of the following: 1,110
(1) Any violation of this chapter or any rule adopted 1,112
under this chapter, or of any charitable solicitation legislation 1,113
or regulation of a political subdivision of this state or 1,114
charitable solicitation law of any other jurisdiction that is 1,115
similar to this chapter; 1,116
(2) A felony in this or another state. 1,118
Sec. 1716.16. (A) In addition to other remedies 1,127
authorized by law, the attorney general may bring a civil action 1,128
to enforce this chapter or any rule adopted under this chapter. 1,129
The attorney general is not required to use any procedure 1,130
prescribed in Chapter 119. of the Revised Code prior to 1,131
exercising any remedy set forth in this section. 1,132
(B) Upon a finding that any person has engaged or is 1,134
engaging in any act or practice in violation of this chapter or 1,135
any rule adopted under this chapter, a court may make any 1,136
necessary order or enter a judgment including, but not limited 1,137
to, an injunction, restitution, or an award of reasonable 1,138
attorney's fees and costs of investigation and litigation, and 1,139
may award to the state a civil penalty of not more than ten 1,140
thousand dollars for each violation of this chapter or rule. In 1,141
seeking injunctive relief, the attorney general shall not be 1,142
required to establish irreparable harm but only shall establish a 1,143
violation of a provision of this chapter or a rule adopted under 1,144
this chapter or that the requested order promotes the public 1,145
interest. 1,146
(C) In any case in which the attorney general has 1,148
authority to institute an action or proceeding under this 1,149
chapter, he THE ATTORNEY GENERAL may accept an assurance of 1,150
discontinuance of any method, act, or practice that is in 1,151
violation of this chapter or any rule adopted under it, from any 1,152
26
person alleged to be engaged in or to have engaged in the 1,153
unlawful method, act, or practice. The assurance may include a 1,154
stipulation for the voluntary payment by the person of the costs 1,155
of investigation, or of an amount to be held in escrow pending 1,156
the outcome of any action or as restitution to any aggreived 1,157
AGGRIEVED person or both. The assurance of discontinuance shall 1,158
be in writing and shall be filed with the court of common pleas 1,159
of Franklin county. Any evidence of a violation of the assurance 1,160
of discontinuance shall be prima-facie evidence of a violation of 1,161
this chapter or any rule adopted under it in any subsequent 1,162
action or proceeding brought by the attorney general. Any matter 1,163
that has been closed by the acceptance of an assurance of 1,164
discontinuance may at any time be reopened by the attorney 1,165
general for further proceedings in the public interest. 1,166
(D) In addition to any other sanction imposed by law, any 1,168
charitable organization, fund-raising counsel, professional 1,169
solicitor, commercial co-venturer, or any of their agents, or any 1,170
other person that violates the terms of an assurance of 1,171
discontinuance, an injunction, or any other order or judgment 1,172
entered by a court under this section, shall forfeit and pay to 1,173
the state a civil penalty of not more than ten thousand dollars 1,174
for each violation that may be recovered in a civil action 1,175
brought by the attorney general. Each violation shall be a 1,176
separate offense, except that in the case of a violation through 1,177
continuing failure to obey, or neglect in obeying, the order, 1,178
each day of continuance of the failure or neglect shall be 1,179
considered a separate offense. 1,180
(E) The civil penalties assessed under division (B) or (D) 1,182
of this section or division (F) or (G) of section 1716.15 of the 1,183
Revised Code shall be paid into the state treasury to the credit 1,184
of the charitable foundations LAW fund established under section 1,185
109.32 of the Revised Code. 1,186
Sec. 1716.99. (A) Whoever violates sections 1716.02 to 1,195
1716.17 of the Revised Code or any rule adopted pursuant to those 1,196
27
sections is guilty of solicitation fraud, a misdemeanor of the 1,197
first degree. 1,198
(B) Each occurrence of a solicitation of a contribution 1,200
from any person in violation of sections 1716.02 to 1716.17 of 1,201
the Revised Code or any rule adopted under those sections is 1,202
considered a separate offense of solicitation fraud. 1,203
(C) Any person who is found guilty of solicitation fraud 1,205
shall forfeit the bond described in section 1716.05 or 1716.07 of 1,207
the Revised Code to the state treasury to the credit of the 1,208
charitable foundations LAW fund established under section 109.32 1,209
of the Revised Code and shall be prohibited from registering with 1,210
the attorney general or from serving as a fund-raising counsel or 1,211
professional solicitor in this state for a period of five years 1,212
after his conviction.
Sec. 2103.041. In any action involving the judicical 1,221
JUDICIAL sale of real property for the purpose of satisfying the 1,222
claims of creditors of an owner of an interest in the property, 1,223
the spouse of the owner may be made a party to the action, and 1,224
the dower interest of the spouse, whether inchoate or otherwise, 1,225
may be subjected to the sale without the consent of the spouse. 1,226
The court shall determine the present value and priority of the 1,227
dower interest, using the American experience table of mortality 1,228
as the basis for determining the value, IN ACCORDANCE WITH 1,229
SECTION 2131.01 OF THE REVISED CODE and shall award the spouse a 1,230
sum of money equal to the present value of the dower interest, to 1,231
be paid out of the proceeds of the sale according to the priority 1,232
of the interest. To the extent that the owner and his THE 1,233
OWNER'S spouse are both liable for the indebtedness, the dower 1,235
interest of the spouse is subordinate to the claims of their 1,236
common creditors.
Sec. 2107.26. When an original will is lost, spoliated, or 1,245
destroyed subsequent to BEFORE OR AFTER the death of a testator, 1,246
or before the death of such testator if the testator's lack of 1,248
knowledge of such loss, spoliation, or destruction can be proved 1,249
28
by clear and convincing testimony, or after he became incapable
of making a will by reason of insanity, and such will cannot be 1,250
produced in the probate court in as complete a manner as the 1,251
originals of last wills and testaments which are actually 1,252
produced therein for probate, the PROBATE court may SHALL admit 1,254
such THE lost, spoliated, or destroyed will to probate, if such 1,255
court is satisfied the will was executed according to the law in 1,256
force at the time of its execution and not revoked at the death 1,257
of the testator BOTH OF THE FOLLOWING APPLY: 1,258
(A) THE PROPONENT OF THE WILL ESTABLISHES BY CLEAR AND 1,261
CONVINCING EVIDENCE BOTH OF THE FOLLOWING: 1,262
(1) THE WILL WAS EXECUTED WITH THE FORMALITIES REQUIRED AT 1,265
THE TIME OF EXECUTION BY THE JURISDICTION IN WHICH IT WAS 1,266
EXECUTED.
(2) THE CONTENTS OF THE WILL. 1,268
(B) NO PERSON OPPOSING THE ADMISSION OF THE WILL TO 1,271
PROBATE ESTABLISHES BY A PREPONDERANCE OF THE EVIDENCE THAT THE 1,272
TESTATOR HAD REVOKED THE WILL. 1,273
Sec. 2107.33. (A) A will shall be revoked by IN THE 1,282
FOLLOWING MANNERS: 1,283
(1) BY the testator by tearing, canceling, obliterating, 1,286
or destroying it with the intention of revoking it, or by; 1,287
(2) BY some person, AT THE REQUEST OF THE TESTATOR AND in 1,290
the testator's presence, or by TEARING, CANCELING, OBLITERATING, 1,292
OR DESTROYING IT WITH THE INTENTION OF REVOKING IT; 1,293
(3) BY SOME PERSON TEARING, CANCELING, OBLITERATING, OR 1,295
DESTROYING IT PURSUANT TO the testator's express written 1,297
direction, or by;
(4) BY some other written will or codicil, executed as 1,300
prescribed by sections 2107.01 to 2107.62 of the Revised Code, or 1,301
by THIS CHAPTER; 1,302
(5) BY some other writing that is signed, attested, and 1,305
subscribed in the manner provided by those sections THIS CHAPTER. 1,306
A
29
(B) A will that has been declared valid and is in the 1,309
possession of a probate judge may also MAY be revoked according 1,311
to division (C) of section 2107.084 of the Revised Code. 1,312
(B)(C) If a testator removes a will that has been declared 1,314
valid and is in the possession of a probate judge pursuant to 1,315
section 2107.084 of the Revised Code from the possession of the 1,316
judge, the declaration of validity that was rendered no longer 1,317
has any effect. 1,318
(C)(D) If after executing a will, a testator is divorced, 1,320
obtains a dissolution of marriage, has his THE TESTATOR'S 1,321
marriage annulled, or, upon actual separation from his THE 1,323
TESTATOR'S spouse, enters into a separation agreement pursuant to 1,325
which the parties intend to fully and finally settle their 1,326
prospective property rights in the property of the other, whether 1,327
by expected inheritance or otherwise, any disposition or 1,328
appointment of property made by the will to the former spouse or 1,329
to a trust with powers created by or available to the former 1,330
spouse, any provision in the will conferring a general or special 1,331
power of appointment on the former spouse, and any nomination in 1,332
the will of the former spouse as executor, trustee, or guardian, 1,333
shall be revoked unless the will expressly provides otherwise. 1,334
(D)(E) Property prevented from passing to a former spouse 1,336
or to a trust with powers created by or available to the former 1,337
spouse because of revocation by this section shall pass as if the 1,338
former spouse failed to survive the decedent, and other 1,339
provisions conferring some power or office on the former spouse 1,340
shall be interpreted as if the spouse failed to survive the 1,341
decedent. If provisions are revoked solely by this section, they 1,342
shall be deemed to be revived by the testator's remarriage with 1,343
the former spouse or upon the termination of a separation 1,344
agreement executed by them. 1,345
(E)(F) A bond, agreement, or covenant made by a testator, 1,347
for a valuable consideration, to convey property previously 1,348
devised or bequeathed in a will, does not revoke the devise or 1,349
30
bequest. The property passes by the devise or bequest, subject to 1,350
the remedies on the bond, agreement, or covenant, for a specific 1,351
performance or otherwise, against the devisees or legatees, that 1,352
might be had by law against the heirs of the testator, or his THE 1,353
TESTATOR'S next of kin, if the property had descended to them. 1,355
(F)(G) A TESTATOR'S REVOCATION OF A WILL SHALL BE VALID 1,358
ONLY IF THE TESTATOR, AT THE TIME OF THE REVOCATION, HAS THE SAME 1,359
CAPACITY AS THE LAW REQUIRES FOR THE EXECUTION OF A WILL. 1,360
(H) As used in this section: 1,362
(1) "Trust with powers created by or available to the 1,364
former spouse" means a trust that is revocable by the former 1,365
spouse, with respect to which the former spouse has a power of 1,366
withdrawal, or with respect to which the former spouse may take a 1,367
distribution that is not subject to an ascertainable standard but 1,368
does not mean a trust in which those powers of the former spouse 1,369
are revoked by section 1339.62 of the Revised Code or similar 1,370
provisions in the law of another state. 1,371
(2) "Ascertainable standard" means a standard that is 1,373
related to a trust beneficiary's health, maintenance, support, or 1,374
education. 1,375
Sec. 2109.07. (A) The bond required of an administrator 1,384
by section 2109.04 of the Revised Code shall not be required IN 1,385
EITHER OF THE FOLLOWING CASES: 1,386
(1) IT SHALL NOT BE REQUIRED of a surviving spouse to 1,389
administer the deceased spouse's estate, if the surviving spouse 1,390
is entitled to the entire net proceeds of the estate. The 1,391
(2) IT SHALL NOT BE REQUIRED OF AN ADMINISTRATOR TO 1,393
ADMINISTER AN ESTATE IF THE ADMINISTRATOR IS THE NEXT OF KIN AND 1,394
IF THE ADMINISTRATOR IS ENTITLED TO THE ENTIRE NET PROCEEDS OF 1,396
THE ESTATE.
(B) THE bond otherwise required by section 2109.04 of the 1,399
Revised Code of an administrator shall be conditioned as follows: 1,400
(A)(1) To file with the probate court within the time 1,404
required by section 2115.02 of the Revised Code an inventory of 1,405
31
all tangible and intangible personal property of the deceased 1,407
that is to be administered and that comes to the administrator's 1,409
possession or knowledge and an inventory of the deceased's 1,410
interest in real estate located in this state; 1,411
(B)(2) To administer and distribute according to law all 1,413
tangible and intangible personal property of the deceased, the 1,416
proceeds of any action for wrongful death or of any settlement, 1,417
with or without suit, of a wrongful death claim, and the proceeds 1,418
of all real estate in which the deceased had an interest, that is 1,420
located in this state, and that is sold, when the property or 1,421
proceeds have come to the possession of the administrator or to 1,422
the possession of a person for the administrator; 1,423
(C)(3) To render a just and true account of the 1,425
administrator's administration at the times required by section 1,426
2109.30 of the Revised Code; 1,427
(D)(4) To deliver the letters of administration into court 1,429
if a will of the deceased is proved and allowed. 1,430
Sec. 2109.09. (A) The bond required OF AN EXECUTOR by 1,439
section 2109.04 of the Revised Code of an executor SHALL NOT BE 1,441
REQUIRED OF THE EXECUTOR TO ADMINISTER AN ESTATE IN ACCORDANCE 1,442
WITH THE WILL OF THE TESTATOR IF THE EXECUTOR IS THE NEXT OF KIN 1,443
AND IF THE EXECUTOR IS ENTITLED TO THE ENTIRE NET PROCEEDS OF THE
ESTATE. 1,444
(B) THE BOND OTHERWISE REQUIRED OF AN EXECUTOR BY SECTION 1,446
2109.04 OF THE REVISED CODE shall be conditioned as follows: 1,447
(A)(1) To file with the probate court within the time 1,451
required by section 2115.02 of the Revised Code an inventory of 1,452
all the tangible and intangible personal property of the testator 1,454
that is to be administered and that comes to the executor's 1,455
possession or knowledge and an inventory of the testator's 1,456
interest in real estate located in this state; 1,457
(B)(2) To administer and distribute according to law and 1,459
the will of the testator all the testator's tangible and 1,462
intangible personal property, the proceeds of any action for 1,463
32
wrongful death or of any settlement, with or without suit, of a 1,464
wrongful death claim, and the proceeds of all real estate in 1,466
which the testator had an interest, that is located in this
state, and that is sold, when the property or proceeds have come 1,468
to the possession of the executor or to the possession of another 1,469
person for the executor;
(C)(3) To render a just and true account of the executor's 1,471
administration at the times required by section 2109.30 of the 1,473
Revised Code.
Sec. 2109.10. If an executor or administrator is sole 1,482
residuary legatee or distributee AND IF DIVISION (A) OF SECTION 1,483
2109.07 OR DIVISION (A) OF SECTION 2109.09 OF THE REVISED CODE 1,484
DOES NOT APPLY, instead of giving the bond prescribed by section 1,486
2109.04 of the Revised Code, he THE EXECUTOR OR ADMINISTRATOR may 1,487
give a bond to the satisfaction of the probate court conditioned 1,488
as follows:
(A) To pay the costs of administration and all the debts 1,490
and legacies of the decedent to the extent of the assets of the 1,491
estate; 1,492
(B) If executor THERE IS A WILL, to pay over such THE 1,495
testator's estate to the person entitled thereto in case TO THE 1,496
TESTATOR'S ESTATE IF the will is set aside; 1,497
(C) If administrator THERE IS NO WILL OFFERED AT THE 1,499
OPENING OF THE ESTATE, to pay over such THE testator's estate to 1,501
the person entitled thereto in case TO THE TESTATOR'S ESTATE IF a 1,502
will is probated after his THE ADMINISTRATOR'S INITIAL 1,503
appointment.
The giving of such bond shall not discharge the lien on the 1,505
decedent's real estate for the payment of his THE DECEDENT'S 1,506
debts, except that part which has been lawfully sold by the 1,507
executor or administrator. 1,508
Sec. 2109.67. (A) Unless the will otherwise provides and 1,517
subject to division (B) of this section, all expenses incurred in 1,518
connection with the settlement of a decedent's estate, including 1,519
33
debts, funeral expenses, estate taxes, penalties concerning 1,520
taxes, allowances to a surviving spouse, minor children, or both, 1,521
including, but not limited to, the allowance for support under 1,522
section 2106.13 of the Revised Code, fees of attorneys and 1,523
personal representatives, and court costs shall be charged 1,524
against the principal of the estate. 1,525
(B) Unless the will otherwise provides, income from the 1,527
assets of a decedent's estate after the death of the testator and 1,528
before distribution, including income from property used to 1,529
discharge liabilities, shall be determined in accordance with the 1,530
rules applicable to a trustee under Chapter 1340. of the Revised 1,531
Code and distributed as follows: 1,532
(1) To specific legatees and devisees, the income from the 1,534
property bequeathed or devised to them respectively, less 1,535
property taxes, ordinary repairs, interest, and other expenses of 1,536
management and operation of the property, and an appropriate 1,537
portion of taxes imposed on income, excluding taxes on capital 1,538
gains, income in respect of a decedent, and other items allocable 1,539
to principal, which accrue during the period of administration; 1,540
(2)(a) To all other legatees, except as provided in 1,542
division (B)(3)(2)(b) of this section, the balance of the income, 1,543
less the balance of property taxes, ordinary repairs, interest, 1,544
and other expenses of management and operation of all property 1,545
from which the estate is entitled to income, and taxes imposed on 1,546
income, excluding taxes on capital gains, income in respect of a 1,547
decedent, and other items allocable to principal, which accrue 1,548
during the period of administration, in proportion to their 1,549
respective interests in the undistributed assets of the estate, 1,550
computed at times of distribution on the basis of inventory 1,551
value; 1,552
(3)(b) A legatee, other than the testator's surviving 1,554
spouse, of a pecuniary legacy not in trust shall not be paid 1,555
interest on the legacy, and the legacy shall not be entitled to 1,556
receive any part of the income received by the estate during the 1,557
34
period of administration as income on the legacy. A legacy to 1,558
the testator's surviving spouse of a pecuniary amount shall carry 1,559
with it a proportionate part of the income of the estate from the 1,560
testator's death to the date of satisfaction, determined in 1,561
accordance with division (B)(2)(a) of this section. 1,562
(C) IF A WILL OR TRUST INSTRUMENT GIVES THE FIDUCIARY 1,564
DISCRETION IN CREDITING A RECEIPT OR CHARGING AN EXPENDITURE TO 1,565
INCOME OR PRINCIPAL OR PARTLY TO EACH, NO INFERENCE OF IMPRUDENCE 1,567
OR PARTIALITY ARISES FROM THE FACT THAT THE FIDUCIARY HAS MADE AN 1,568
ALLOCATION CONTRARY TO THIS SECTION, SECTION 2109.66, OR SECTIONS 1,569
1340.01 TO 1340.13 OF THE REVISED CODE. 1,570
(D) A FIDUCIARY MAY CREDIT A RECEIPT OR CHARGE AN 1,572
EXPENDITURE TO INCOME OR PRINCIPAL WITH RESPECT TO A DECEDENT'S 1,573
ESTATE, A TRUST UNDER A WILL, OR PROPERTY PASSING TO A TRUST 1,575
UNDER A WILL, THAT IS ELIGIBLE FOR A FEDERAL OR OHIO ESTATE TAX 1,576
MARITAL DEDUCTION OR ESTATE TAX CHARITABLE DEDUCTION ONLY TO THE
EXTENT THAT THE CREDIT OF THE RECEIPT OR CHARGE OF THE 1,578
EXPENDITURE WILL NOT CAUSE THE REDUCTION OR LOSS OF THE 1,579
DEDUCTION.
(E) AS USED IN THIS SECTION, "FEDERAL ESTATE TAX 1,581
CHARITABLE DEDUCTION," "FEDERAL ESTATE TAX MARITAL DEDUCTION," 1,582
"OHIO ESTATE TAX CHARITABLE DEDUCTION," AND "OHIO ESTATE TAX 1,583
MARITAL DEDUCTION" HAVE THE SAME MEANINGS AS IN SECTION 1340.02 1,584
OF THE REVISED CODE. 1,585
Sec. 2131.01. PRESENT VALUES FOR PROBATE MATTERS SHALL BE 1,587
THE VALUES DETERMINED FOR OHIO ESTATE TAX PURPOSES PURSUANT TO 1,588
DIVISION (B) OF SECTION 5731.01 OF THE REVISED CODE. 1,591
Sec. 5103.16. (A) Except as otherwise provided in this 1,600
section, no child shall be placed or accepted for placement under 1,601
any written or oral agreement or understanding that transfers or 1,602
surrenders the legal rights, powers, or duties of the legal 1,603
parent, parents, or guardian of the child into the temporary or 1,604
permanent custody of any association or institution that is not 1,606
certified by the department of human services under section
35
5103.03 of the Revised Code, without the written consent of the 1,608
office in the department that oversees the interstate compact on 1,609
placement of children established under section 5103.20 of the 1,610
Revised Code, or by a commitment of a juvenile court, or by a 1,611
commitment of a probate court as provided in this section. A 1,612
child may be placed temporarily without written consent or court 1,613
commitment with persons related by blood or marriage or in a 1,614
legally licensed boarding home.
(B)(1) Associations and institutions certified under 1,616
section 5103.03 of the Revised Code for the purpose of placing 1,617
children in free foster homes or for legal adoption shall keep a 1,619
record of the temporary and permanent surrenders of children. 1,620
This record shall be available for separate statistics, which 1,621
shall include a copy of an official birth record and all 1,622
information concerning the social, mental, and medical history of 1,623
the children that will aid in an intelligent disposition of the 1,624
children in case that becomes necessary because the parents or 1,625
guardians fail or are unable to reassume custody. 1,626
(2) No child placed on a temporary surrender with an 1,628
association or institution shall be placed permanently in a 1,629
foster home or for legal adoption. All surrendered children who 1,630
are placed permanently in foster homes or for adoption shall have 1,631
been permanently surrendered, and a copy of the permanent 1,632
surrender shall be a part of the separate record kept by the 1,633
association or institution. 1,634
(C) Any agreement or understanding to transfer or 1,636
surrender the legal rights, powers, or duties of the legal parent 1,637
or parents and place a child with a person seeking to adopt the 1,638
child under this section shall be construed to contain a promise 1,639
by the person seeking to adopt the child to pay the expenses 1,640
listed in divisions (C)(1), (2), and (4) of section 3107.10 of 1,641
the Revised Code and, if the person seeking to adopt the child 1,642
refuses to accept placement of the child, to pay the temporary 1,643
costs of routine maintenance and medical care for the child in a 1,644
36
hospital, foster home, or other appropriate place for up to 1,645
thirty days or until other custody is established for the child, 1,646
as provided by law, whichever is less. 1,647
(D) No child shall be placed or received for adoption or 1,649
with intent to adopt unless placement is made by a public 1,650
children services agency, an institution or association that is 1,652
certified by the department of human services under section 1,653
5103.03 of the Revised Code to place children for adoption, or 1,654
custodians in another state or foreign country, or unless all of
the following criteria are met: 1,655
(1) Prior to the placement and receiving of the child, the 1,657
parent or parents of the child personally have applied to, and 1,658
appeared before, the probate court of the county in which the 1,659
parent or parents reside, or in which the person seeking to adopt 1,660
the child resides, for approval of the proposed placement 1,661
specified in the application and have signed and filed with the 1,662
court a written statement showing that the parent or parents are 1,663
aware of their right to contest the decree of adoption subject to 1,664
the limitations of section 3107.16 of the Revised Code; 1,665
(2) The court ordered an independent home study of the 1,668
proposed placement to be conducted as provided in section
3107.031 of the Revised Code, and after completion of the home 1,670
study, the court determined that the proposed placement is in the
best interest of the child; 1,671
(3) The court has approved of record the proposed 1,673
placement. 1,674
In determining whether a custodian has authority to place 1,676
children for adoption under the laws of a foreign country, the 1,677
probate court shall determine whether the child has been released 1,678
for adoption pursuant to the laws of the country in which the 1,679
child resides, and if the release is in a form that satisfies the 1,680
requirements of the immigration and naturalization service of the 1,681
United States department of justice for purposes of immigration 1,682
to this country pursuant to section 101(b)(1)(F) of the 1,683
37
"Immigration and Nationality Act," 75 Stat. 650 (1961), 8 U.S.C. 1,684
1101 (b)(1)(F), as amended or reenacted. 1,685
If the parent or parents of the child are deceased or have 1,687
abandoned the child, as determined under division (A) of section 1,688
3107.07 of the Revised Code, the application for approval of the 1,689
proposed adoptive placement may be brought by the relative 1,690
seeking to adopt the child, or by the department, board, or 1,691
organization not otherwise having legal authority to place the 1,692
orphaned or abandoned child for adoption, but having legal 1,693
custody of the orphaned or abandoned child, in the probate court 1,694
of the county in which the child is a resident, or in which the 1,695
department, board, or organization is located, or where the 1,696
person or persons with whom the child is to be placed reside. 1,697
Unless the parent, parents, or guardian of the person of the 1,698
child personally have appeared before the court and applied for 1,699
approval of the placement, notice of the hearing on the 1,700
application shall be served on the parent, parents, or guardian. 1,701
The consent to placement, surrender, or adoption executed 1,703
by a minor parent before a judge of the probate court or an 1,704
authorized deputy or referee of the court, whether executed 1,705
within or outside the confines of the court, is as valid as 1,706
though executed by an adult. A consent given as above before an 1,707
employee of a children services agency that is licensed as 1,708
provided by law, is equally effective, if the consent also is 1,709
accompanied by an affidavit executed by the witnessing employee 1,710
or employees to the effect that the legal rights of the parents 1,711
have been fully explained to the parents, prior to the execution 1,712
of any consent, and that the action was done after the birth of 1,713
the child. 1,714
If the court approves a placement, the prospective adoptive 1,716
parent with whom the child is placed has care, custody, and 1,717
control of the child pending further order of the court. 1,718
(E) This section does not apply to an adoption by a 1,720
stepparent, A GRANDPARENT, or a guardian. 1,721
38
Section 2. That existing sections 109.32, 1339.51, 1,723
1340.01, 1340.02, 1340.03, 1340.09, 1340.12, 1716.02, 1716.05, 1,725
1716.07, 1716.17, 1716.99, 2103.041, 2107.26, 2107.33, 2109.07, 1,726
2109.09, 2109.10, 2109.67, and 5103.16 and section 2131.01 of the 1,727
Revised Code are hereby repealed.
Section 3. It is the intent of the General Assembly in 1,729
amending section 1340.02 of the Revised Code in this act to limit 1,730
the application of the holding of the Ohio Supreme Court in 1,731
Sherman v. Sherman (1966), 5 Ohio St.2d 27. 1,732
Section 4. Except as otherwise provided in this section, 1,734
section 1340.031 of the Revised Code, as enacted by this act, 1,735
applies to inter vivos trusts that are in existence or are 1,736
created on or after the effective date of this act. Division (B) 1,737
of section 1340.031 of the Revised Code, as enacted by this act, 1,738
applies to reports furnished by an inter vivos trustee as 1,739
provided in that section on or after the effective date of this 1,740
act.
Section 5. Sections 2109.07, 2109.09, and 2109.10 of the 1,742
Revised Code, as amended by this act, shall apply regarding all 1,744
administrators and executors who are appointed on or after the 1,746
effective date of this act.