S. B. No. 64 As Introduced

Senators Goodman, Randy Gardner, Stivers, Jacobson

A BILL
To amend sections 1337.091, 1339.66, 2107.27, and 1
2109.62 and to enact sections 1339.621 and 2107.24 2
of the Revised Code to provide for distribution of 3
the trust estate upon a probate court's 4
termination of small trusts and representation in 5
a trust, to specify the circumstances for the 6
revocation or nonrevocation of a power of attorney 7
upon the termination of the marriage or separation 8
agreement between the principal and the 9
principal's spouse as attorney in fact, and to 10
provide a procedure for a probate court to treat a 11
document as a will notwithstanding its 12
noncompliance with the statutory formalities for 13
executing wills. 14

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

       Section 1. That sections 1337.091, 1339.66, 2107.27, and 15
2109.62 be amended and sections 1339.621 and 2107.24 of the 16
Revised Code be enacted to read as follows: 17

       Sec. 1337.091. (A) The death or adjudged incompetency of any 18
principal who has executed a power of attorney in writing does not 19
revoke the power and authority of the attorney in fact who, 20
without actual knowledge of the death or adjudged incompetency of 21
the principal, acts in good faith under the power of attorney. Any 22
action so taken, unless otherwise invalid or unenforceable, inures 23
to the benefit of and binds the principal and the principal's 24
heirs, devisees, and personal representatives. 25

       (B)(1) An affidavit,that is executed by the attorney in fact 26
~~stating that the attorney in fact did not have,~~ at the time of 27
doing an act pursuant to the power of attorney~~, actual knowledge~~ 28
~~of the revocation of the power of attorney by the principal, or~~ 29
~~the revocation of the power of attorney by death or adjudged~~ 30
~~incompetency of the principal~~ is, in the absence of fraud, 31
conclusive proof of the nonrevocation of the power of attorney at 32
that time~~. If~~if the affadavit contains the following: 33

       (a) A statement that the attorney in fact has no actual 34
knowledge of the revocation of the power of attorney by the 35
principal; 36

       (b) A statement that the attorney in fact has no actual 37
knowledge of the revocation of the power of attorney by death or 38
adjudged incompetency of the principal; 39

       (c) If the attorney in fact was never married to the 40
principal, a statement of that fact; 41

       (d) If the attorney in fact was married to the principal and 42
the marriage has been terminated, a statement that the power of 43
attorney is not revoked by reason of law due to the termination of 44
the marriage between the principal and the attorney in fact; 45

       (e) If the attorney in fact is married to the principal and a 46
separation agreement has been entered into between the principal 47
and the attorney in fact in which they intend to fully and finally 48
settle each spouse's prospective property rights in the property 49
of the other, a statement that the power of attorney is not 50
revoked by reason of law due to the existence of a separation 51
agreement of that nature entered into between the principal and 52
the attorney in fact. 53

       (2) If the exercise of the power of attorney requires the 54
execution and delivery of any instrument that is recordable, the 55
affidavit ~~when~~that is executed under division (B)(1) of this 56
section, if acknowledged before a notary public in the same manner 57
as a deed, is likewise recordable. 58

       (C) This section shall not be construed to alter or affect 59
any provision for revocation contained in any power of attorney. 60
This section shall not be construed to affect any provision of a 61
power of attorney that indicates, consistent with section 1337.09 62
of the Revised Code, that the authority of the attorney in fact is 63
exercisable by the attorney in fact as provided in the power of 64
attorney notwithstanding the later disability, incapacity, or 65
adjudged incompetency of the principal. 66

       Sec. 1339.621. If a principal executes a power of attorney 67
designating the principal's spouse as the attorney in fact for the 68
principal and if after executing the power of attorney, the 69
principal and the principal's spouse are divorced, obtain a 70
dissolution or annulment of their marriage, or enter into a 71
separation agreement pursuant to which they intend to fully and 72
finally settle each spouse's prospective property rights in the 73
property of the other, the designation in the power of attorney of 74
the spouse or former spouse of the principal to act as attorney in 75
fact for the principal is revoked, unless the power of attorney 76
provides otherwise. The subsequent remarriage of the principal to 77
the principal's former spouse, or the termination of a separation 78
agreement between the principal and the principal's spouse, does 79
not revive a power of attorney that is revoked under this section. 80

       Sec. 1339.66. (A)(1) Upon the filing of a motion by a 81
trustee with the court that has jurisdiction over the trust, upon 82
the provision of reasonable notice to all beneficiaries who are 83
known and in being and who have vested or contingent interests in 84
the trust, and after holding a hearing, the court may terminate 85
the trust, in whole or in part, if it determines that all of the 86
following apply: 87

       (a) It is no longer economically feasible to continue the 88
trust. 89

       (b) The termination of the trust is for the benefit of the 90
beneficiaries. 91

       (c) The termination of the trust is equitable and practical. 92

       (d) The current value of the trust is less than one hundred 93
thousand dollars. 94

       (2) The existence of a spendthrift or similar provision in a 95
trust instrument or will does not preclude the termination of a 96
trust pursuant to this section. 97

       (B) If property is to be distributed from an estate being 98
probated to a trust and the termination of the trust pursuant to 99
this section does not clearly defeat the intent of the testator, 100
the probate court has jurisdiction to order the outright 101
distribution of the property or to make the property custodial 102
property under sections 1339.31 to 1339.39 of the Revised Code. A 103
probate court may so order whether the application for the order 104
is made by an inter vivos trustee named in the will of the 105
decedent or by a testamentary trustee. 106

       (C) Upon the termination of a trust pursuant to this section, 107
the probate court shall order the distribution of the trust estate 108
in accordance with any provision specified in the trust instrument 109
for the premature termination of the trust. If there is no 110
provision of that nature in the trust instrument, the probate 111
court shall order the distribution of the trust estate among the 112
beneficiaries of the trust in accordance with their respective 113
beneficial interests and in a manner that the court determines to 114
be equitable. For purposes of ordering the distribution of the 115
trust estate among the beneficiaries of the trust under this 116
division, the court shall consider all of the following: 117

       (1) The existence of any agreement among the beneficiaries 118
with respect to their beneficial interests; 119

       (2) The actuarial values of the separate beneficial interests 120
of the beneficiaries; 121

       (3) Any expression of preference of the beneficiaries that is 122
contained in the trust instrument. 123

       (D) Unless otherwise represented or bound, a minor, an 124
incapacitated or unborn person, or a person whose identity or 125
location is unknown and is not reasonably ascertainable may be 126
represented by or bound by another person who has a substantially 127
identical interest in the trust as that minor, incapacitated or 128
unborn person, or person whose identity or location is unknown and 129
is not reasonably ascertainable, but only to the extent that there 130
is no conflict of interest between the person who is represented 131
or bound and the person who represents or binds that person. As 132
used in this division, "minor" means a person who is under 133
eighteen years of age. 134

       Sec. 2107.24. If a document that purports to be a will is 135
not executed in compliance with the requirements of section 136
2107.03 of the Revised Code, that document shall be treated as if 137
it had been executed as a will in compliance with the requirements 138
of that section if a probate court, after holding a hearing, finds 139
that the proponent of the document as a purported will has 140
established, by clear and convincing evidence, all of the 141
following: 142

       (A) The decedent prepared the document or caused the document 143
to be prepared. 144

       (B) The decedent signed or attempted to sign the document and 145
intended the document to constitute the decedent's will. 146

       (C) Two or more witnesses saw the decedent sign or attempt to 147
sign the document. 148

       Sec. 2107.27. (A) When application is made to the probate 149
court to admit to probate a will that has been lost, spoliated, or 150
destroyed as provided in section 2107.26 of the Revised Code or a 151
document that is treated as a will as provided in section 2107.24 152
of the Revised Code, the party seeking to prove the will shall 153
give a written notice by certified mail to the surviving spouse of 154
the testator, to all persons who would be entitled to inherit from 155
the testator under Chapter 2105. of the Revised Code if the 156
testator had died intestate, to all legatees and devisees that are 157
named in the will, and to all legatees and devisees that are named 158
in the most recent will prior to the lost, spoliated, or destroyed 159
will that is known to the applicant. 160

       (B) In the cases described in division (A) of this section, 161
the proponents and opponents of the will shall cause the witnesses 162
to the will, and any other witnesses that have relevant and 163
material knowledge about the will, to appear before the court to 164
testify. If any witnesses reside out of its jurisdiction, or 165
reside within its jurisdiction but are infirm or unable to attend, 166
the probate court may order their testimony to be taken and 167
reduced to writing by some competent person. The testimony shall 168
be filed in the records of the probate court pertaining to the 169
testator's estate. 170

       (C) If upon such proof the court finds that the requirements 171
of section 2107.24 or 2107.26 of the Revised Code, whichever is 172
applicable, have been met, the probate court shall find and 173
establish the contents of the will as near as can be ascertained. 174
The contents of the will established under section 2107.26 of the 175
Revised Code shall be as effectual for all purposes as if the 176
original will had been admitted to probate and record. The 177
contents of the will established under section 2107.24 of the 178
Revised Code shall be as effectual for all purposes as if the 179
document treated as a will had satisfied all of the requirements 180
of section 2107.03 of the Revised Code and had been admitted to 181
probate and record. 182

       Sec. 2109.62. (A)(1) Upon the filing of a motion by a 183
trustee with the court that has jurisdiction over the trust, upon 184
the provision of reasonable notice to all beneficiaries who are 185
known and in being and who have vested or contingent interests in 186
the trust, and after holding a hearing, the court may terminate 187
the trust, in whole or in part, if it determines that all of the 188
following apply: 189

       (a) It is no longer economically feasible to continue the 190
trust. 191

       (b) The termination of the trust is for the benefit of the 192
beneficiaries. 193

       (c) The termination of the trust is equitable and practical. 194

       (d) The current value of the trust is less than one hundred 195
thousand dollars. 196

       (2) The existence of a spendthrift or similar provision in a 197
trust instrument or will does not preclude the termination of a 198
trust pursuant to this section. 199

       (B) If property is to be distributed from an estate being 200
probated to a trust and the termination of the trust pursuant to 201
this section does not clearly defeat the intent of the testator, 202
the probate court has jurisdiction to order the outright 203
distribution of the property or to make the property custodial 204
property under sections 1339.31 to 1339.39 of the Revised Code. A 205
probate court may so order whether the application for the order 206
is made by an inter vivos trustee named in the will of the 207
decedent or by a testamentary trustee. 208

       (C) Upon the termination of a trust pursuant to this section, 209
the probate court shall order the distribution of the trust estate 210
in accordance with any provision specified in the trust instrument 211
for the premature termination of the trust. If there is no 212
provision of that nature in the trust instrument, the probate 213
court shall order the distribution of the trust estate among the 214
beneficiaries of the trust in accordance with their respective 215
beneficial interests and in a manner that the court determines to 216
be equitable. For purposes of ordering the distribution of the 217
trust estate among the beneficiaries of the trust under this 218
division, the court shall consider all of the following: 219

       (1) The existence of any agreement among the beneficiaries 220
with respect to their beneficial interests; 221

       (2) The actuarial values of the separate beneficial interests 222
of the beneficiaries; 223

       (3) Any expression of preference of the beneficiaries that is 224
contained in the trust instrument. 225

       (D) Unless otherwise represented or bound, a minor, an 226
incapacitated or unborn person, or a person whose identity or 227
location is unknown and is not reasonably ascertainable may be 228
represented by or bound by another person who has a substantially 229
identical interest in the trust as that minor, incapacitated or 230
unborn person, or person whose identity or location is unknown and 231
is not reasonably ascertainable, but only to the extent that there 232
is no conflict of interest between the person who is represented 233
or bound and the person who represents or binds that person. As 234
used in this division, "minor" means a person who is under 235
eighteen years of age. 236

       Section 2. That existing sections 1337.091, 1339.66, 2107.27, 237
and 2109.62 of the Revised Code are hereby repealed. 238

Section 1. That sections 1337.091, 1339.66, 2107.27, and	15
2109.62 be amended and sections 1339.621 and 2107.24 of the	16
Revised Code be enacted to read as follows:	17

Sec. 1337.091. (A) The death or adjudged incompetency of any	18
principal who has executed a power of attorney in writing does not	19
revoke the power and authority of the attorney in fact who,	20
without actual knowledge of the death or adjudged incompetency of	21
the principal, acts in good faith under the power of attorney. Any	22
action so taken, unless otherwise invalid or unenforceable, inures	23
to the benefit of and binds the principal and the principal's	24
heirs, devisees, and personal representatives.	25

(B)(1) An affidavit,that is executed by the attorney in fact	26
~~stating that the attorney in fact did not have,~~ at the time of	27
doing an act pursuant to the power of attorney~~, actual knowledge~~	28
~~of the revocation of the power of attorney by the principal, or~~	29
~~the revocation of the power of attorney by death or adjudged~~	30
~~incompetency of the principal~~ is, in the absence of fraud,	31
conclusive proof of the nonrevocation of the power of attorney at	32
that time~~. If~~if the affadavit contains the following:	33

(a) A statement that the attorney in fact has no actual	34
knowledge of the revocation of the power of attorney by the	35
principal;	36

(b) A statement that the attorney in fact has no actual	37
knowledge of the revocation of the power of attorney by death or	38
adjudged incompetency of the principal;	39

(c) If the attorney in fact was never married to the	40
principal, a statement of that fact;	41

(d) If the attorney in fact was married to the principal and	42
the marriage has been terminated, a statement that the power of	43
attorney is not revoked by reason of law due to the termination of	44
the marriage between the principal and the attorney in fact;	45

(e) If the attorney in fact is married to the principal and a	46
separation agreement has been entered into between the principal	47
and the attorney in fact in which they intend to fully and finally	48
settle each spouse's prospective property rights in the property	49
of the other, a statement that the power of attorney is not	50
revoked by reason of law due to the existence of a separation	51
agreement of that nature entered into between the principal and	52
the attorney in fact.	53

(2) If the exercise of the power of attorney requires the	54
execution and delivery of any instrument that is recordable, the	55
affidavit ~~when~~that is executed under division (B)(1) of this	56
section, if acknowledged before a notary public in the same manner	57
as a deed, is likewise recordable.	58

(C) This section shall not be construed to alter or affect	59
any provision for revocation contained in any power of attorney.	60
This section shall not be construed to affect any provision of a	61
power of attorney that indicates, consistent with section 1337.09	62
of the Revised Code, that the authority of the attorney in fact is	63
exercisable by the attorney in fact as provided in the power of	64
attorney notwithstanding the later disability, incapacity, or	65
adjudged incompetency of the principal.	66

Sec. 1339.621. If a principal executes a power of attorney	67
designating the principal's spouse as the attorney in fact for the	68
principal and if after executing the power of attorney, the	69
principal and the principal's spouse are divorced, obtain a	70
dissolution or annulment of their marriage, or enter into a	71
separation agreement pursuant to which they intend to fully and	72
finally settle each spouse's prospective property rights in the	73
property of the other, the designation in the power of attorney of	74
the spouse or former spouse of the principal to act as attorney in	75
fact for the principal is revoked, unless the power of attorney	76
provides otherwise. The subsequent remarriage of the principal to	77
the principal's former spouse, or the termination of a separation	78
agreement between the principal and the principal's spouse, does	79
not revive a power of attorney that is revoked under this section.	80

Sec. 1339.66. (A)(1) Upon the filing of a motion by a	81
trustee with the court that has jurisdiction over the trust, upon	82
the provision of reasonable notice to all beneficiaries who are	83
known and in being and who have vested or contingent interests in	84
the trust, and after holding a hearing, the court may terminate	85
the trust, in whole or in part, if it determines that all of the	86
following apply:	87

(a) It is no longer economically feasible to continue the	88
trust.	89

(b) The termination of the trust is for the benefit of the	90
beneficiaries.	91

(d) The current value of the trust is less than one hundred	93
thousand dollars.	94

(2) The existence of a spendthrift or similar provision in a	95
trust instrument or will does not preclude the termination of a	96
trust pursuant to this section.	97

(B) If property is to be distributed from an estate being	98
probated to a trust and the termination of the trust pursuant to	99
this section does not clearly defeat the intent of the testator,	100
the probate court has jurisdiction to order the outright	101
distribution of the property or to make the property custodial	102
property under sections 1339.31 to 1339.39 of the Revised Code. A	103
probate court may so order whether the application for the order	104
is made by an inter vivos trustee named in the will of the	105
decedent or by a testamentary trustee.	106

(C) Upon the termination of a trust pursuant to this section,	107
the probate court shall order the distribution of the trust estate	108
in accordance with any provision specified in the trust instrument	109
for the premature termination of the trust. If there is no	110
provision of that nature in the trust instrument, the probate	111
court shall order the distribution of the trust estate among the	112
beneficiaries of the trust in accordance with their respective	113
beneficial interests and in a manner that the court determines to	114
be equitable. For purposes of ordering the distribution of the	115
trust estate among the beneficiaries of the trust under this	116
division, the court shall consider all of the following:	117

(1) The existence of any agreement among the beneficiaries	118
with respect to their beneficial interests;	119

(2) The actuarial values of the separate beneficial interests	120
of the beneficiaries;	121

(3) Any expression of preference of the beneficiaries that is	122
contained in the trust instrument.	123

(D) Unless otherwise represented or bound, a minor, an	124
incapacitated or unborn person, or a person whose identity or	125
location is unknown and is not reasonably ascertainable may be	126
represented by or bound by another person who has a substantially	127
identical interest in the trust as that minor, incapacitated or	128
unborn person, or person whose identity or location is unknown and	129
is not reasonably ascertainable, but only to the extent that there	130
is no conflict of interest between the person who is represented	131
or bound and the person who represents or binds that person. As	132
used in this division, "minor" means a person who is under	133
eighteen years of age.	134

Sec. 2107.24. If a document that purports to be a will is	135
not executed in compliance with the requirements of section	136
2107.03 of the Revised Code, that document shall be treated as if	137
it had been executed as a will in compliance with the requirements	138
of that section if a probate court, after holding a hearing, finds	139
that the proponent of the document as a purported will has	140
established, by clear and convincing evidence, all of the	141
following:	142

(A) The decedent prepared the document or caused the document	143
to be prepared.	144

(B) The decedent signed or attempted to sign the document and	145
intended the document to constitute the decedent's will.	146

(C) Two or more witnesses saw the decedent sign or attempt to	147
sign the document.	148

Sec. 2107.27. (A) When application is made to the probate	149
court to admit to probate a will that has been lost, spoliated, or	150
destroyed as provided in section 2107.26 of the Revised Code or a	151
document that is treated as a will as provided in section 2107.24	152
of the Revised Code, the party seeking to prove the will shall	153
give a written notice by certified mail to the surviving spouse of	154
the testator, to all persons who would be entitled to inherit from	155
the testator under Chapter 2105. of the Revised Code if the	156
testator had died intestate, to all legatees and devisees that are	157
named in the will, and to all legatees and devisees that are named	158
in the most recent will prior to the lost, spoliated, or destroyed	159
will that is known to the applicant.	160

(B) In the cases described in division (A) of this section,	161
the proponents and opponents of the will shall cause the witnesses	162
to the will, and any other witnesses that have relevant and	163
material knowledge about the will, to appear before the court to	164
testify. If any witnesses reside out of its jurisdiction, or	165
reside within its jurisdiction but are infirm or unable to attend,	166
the probate court may order their testimony to be taken and	167
reduced to writing by some competent person. The testimony shall	168
be filed in the records of the probate court pertaining to the	169
testator's estate.	170

(C) If upon such proof the court finds that the requirements	171
of section 2107.24 or 2107.26 of the Revised Code, whichever is	172
applicable, have been met, the probate court shall find and	173
establish the contents of the will as near as can be ascertained.	174
The contents of the will established under section 2107.26 of the	175
Revised Code shall be as effectual for all purposes as if the	176
original will had been admitted to probate and record. The	177
contents of the will established under section 2107.24 of the	178
Revised Code shall be as effectual for all purposes as if the	179
document treated as a will had satisfied all of the requirements	180
of section 2107.03 of the Revised Code and had been admitted to	181
probate and record.	182

Sec. 2109.62. (A)(1) Upon the filing of a motion by a	183
trustee with the court that has jurisdiction over the trust, upon	184
the provision of reasonable notice to all beneficiaries who are	185
known and in being and who have vested or contingent interests in	186
the trust, and after holding a hearing, the court may terminate	187
the trust, in whole or in part, if it determines that all of the	188
following apply:	189