Sec. 1337.091. (A) The death or adjudged incompetency of
any | 23 |
principal who has executed a power of attorney in writing
does
not | 24 |
revoke the power and authority of the attorney in fact
who, | 25 |
without actual knowledge of the death or adjudged
incompetency of | 26 |
the principal, acts in good faith under the power
of attorney.
Any | 27 |
action so taken, unless otherwise invalid or
unenforceable,
inures | 28 |
to the benefit of and binds the principal
and
the
principal's | 29 |
heirs, devisees, and personal
representatives. | 30 |
(B)(1) An affidavit,that is executed by the attorney in fact | 31 |
stating
that
the attorney in fact did not have, at the time of | 32 |
doing
an
act pursuant to the
power of attorney, actual knowledge | 33 |
of the
revocation of the
power of attorney by the principal, or | 34 |
the
revocation of the
power of attorney by death or adjudged | 35 |
incompetency of the
principal is, in the absence of fraud, | 36 |
conclusive proof of the
nonrevocation of the power of attorney at | 37 |
thatthe time.
Ifof the attorney in fact doing an act pursuant to | 38 |
the power of attorney if the affadavit contains the following: | 39 |
(iii) The attorney in fact is married to the principal, a | 55 |
separation agreement has been entered into between the principal | 56 |
and the attorney in fact in which they intend to fully and finally | 57 |
settle each spouse's prospective property rights in the property | 58 |
of the other, and the power of attorney states that the power of | 59 |
attorney is not revoked by reason of law due to the existence of a | 60 |
separation agreement of that nature entered into between the | 61 |
principal and the attorney in fact. | 62 |
(C) This section shall not be construed to alter or affect | 68 |
any provision for revocation contained in any power of attorney. | 69 |
This section shall not be construed to affect any provision of a | 70 |
power of attorney that indicates, consistent with section 1337.09 | 71 |
of the Revised Code, that the authority of the attorney in fact
is | 72 |
exercisable by
the attorney in fact as provided in the
power
of | 73 |
attorney
notwithstanding the later disability, incapacity, or | 74 |
adjudged
incompetency of the principal. | 75 |
(b) It qualifies for the federal estate tax marital
deduction | 83 |
allowed by Subtitle B, Chapter
11, of the "Internal
Revenue Code | 84 |
of 1986," 26 U.S.C.A. 2056, as amended, or the
estate tax marital | 85 |
deduction allowed by division (A) of section
5731.15 of the | 86 |
Revised Code, or the qualified terminable interest property | 87 |
deduction allowed by division (B) of section 5731.15 of the | 88 |
Revised Code. | 89 |
(2) Division (A)(1) of this section does not apply if an | 90 |
instrument that creates an inter vivos or testamentary trust | 91 |
expressly states the intention of the testator or other settlor | 92 |
that obtaining a marital deduction or a qualified terminable | 93 |
interest property deduction as described in division
(A)(1)(b) of | 94 |
this section is less important than enforcing the
forfeiture or | 95 |
postponement of the interest in property in
accordance with the | 96 |
spendthrift provision in the instrument. | 97 |
(4) Division (A)(1) of this section does not
apply to any | 105 |
beneficiary of an inter
vivos or testamentary trust other than the | 106 |
surviving spouse of
the testator or other settlor or to any inter | 107 |
vivos or
testamentary trust of which the surviving spouse of the | 108 |
testator
or other settlor is a beneficiary if an interest in | 109 |
property does
not qualify for a marital deduction or a qualified | 110 |
terminable interest property deduction as described in division | 111 |
(A)(1)(b) of this section. | 112 |
(B)(1) Except as provided in divisions
(B)(2) and (3) of this | 113 |
section, if an
instrument creating an inter vivos or testamentary | 114 |
trust includes a
spendthrift
provision and the trust holds shares | 115 |
in an S
corporation, the spendthrift provision shall not cause any | 116 |
forfeiture or
postponement of any beneficial interest, income, | 117 |
principal, or other interest in the shares of the
S corporation | 118 |
held by the trust. For purposes
of division (B)(1) of this | 119 |
section,
"S corporation" has the same meaning as in
section 1361 | 120 |
of the "Internal Revenue Code of 1986," 26 U.S.C. 1361. | 121 |
(2) Division (B)(1) of this section
does not apply if an | 122 |
instrument that creates an inter vivos or testamentary
trust | 123 |
expressly states the intention of the testator or other settlor | 124 |
that
maintenance of the corporation's status as an
S corporation | 125 |
is less important than enforcing
the forfeiture or postponement of | 126 |
any beneficial interest, income, principal,
or other interest in | 127 |
the
S corporation shares in accordance with the
spendthrift | 128 |
provision in the instrument. | 129 |
(D) Divisions (A), (B), and (C) of
this section are intended | 163 |
to codify certain fiduciary and trust law principles
relating to | 164 |
the interpretation of a testator's or other settlor's intent with | 165 |
respect to the
provisions of a trust. Divisions (A), (B),
and (C) | 166 |
of this section apply to trust instruments executed
prior to and | 167 |
existing on the effective date of this amendmentAugust29, 2000, | 168 |
and to
trust instruments executed on or after the effective
date | 169 |
of this amendmentAugust29, 2000. | 170 |
(2) The property qualifies for the federal estate tax marital | 178 |
deduction
allowed by subtitle B,
Chapter 11 of the
"Internal | 179 |
Revenue Code
of 1986," 26
U.S.C.
2056, as amended, or the estate | 180 |
tax marital deduction allowed by division
(A) of section 5731.15 | 181 |
of the
Revised Code, or the qualified terminable interest property | 182 |
deduction allowed by division (B) of section 5731.15 of the | 183 |
Revised Code. | 184 |
(B)(1) Division
(A) of this section does not apply if an | 185 |
instrument that creates an inter vivos or testamentary trust | 186 |
expressly states
the intention of the testator or other settlor | 187 |
that obtaining a marital
deduction or a qualified terminable | 188 |
interest property deduction as described in division (A)(2) of | 189 |
this section is less important than requiring or permitting the | 190 |
accumulation
of
income of property in accordance with a provision | 191 |
in the instrument that
requires or permits the accumulation for | 192 |
more than one year of any income of
property. | 193 |
(C)(1) The trustee of a trust that qualifies for an estate | 202 |
tax marital deduction for federal or Ohio estate tax purposes
and | 203 |
that is the beneficiary of an individual retirement account has a | 204 |
fiduciary duty, in regard to the income distribution provision of | 205 |
the trust,
to withdraw and distribute the income of the individual | 206 |
retirement account, at
least annually, to the surviving spouse of | 207 |
the testator or other settlor. | 208 |
(D) Divisions (A), (B), and
(C)(1) of
this section are | 215 |
intended to codify existing fiduciary
and trust law
principles | 216 |
relating to the interpretation of a testator's or other settlor's | 217 |
intent with respect to the income provisions of a trust. Divisions | 218 |
(A), (B),
and (C) of this section apply
to trust instruments | 219 |
executed prior to and
existing on
October 1, 1996, or executed | 220 |
thereafter.
The trustee of a
trust described in division (A) or | 221 |
(B) of this section, in a written trust amendment, may elect to | 222 |
not apply divisions (A) and
(B) of this section to the trust.
Any | 223 |
election of that nature, when made, is irrevocable. | 224 |
Sec. 1339.621. If a principal executes a power of attorney | 225 |
designating the principal's spouse as the attorney in fact for the | 226 |
principal and if after executing the power of attorney, the | 227 |
principal and the principal's spouse are divorced, obtain a | 228 |
dissolution or annulment of their marriage, or enter into a | 229 |
separation agreement pursuant to which they intend to fully and | 230 |
finally settle each spouse's prospective property rights in the | 231 |
property of the other, the designation in the power of attorney of | 232 |
the spouse or former spouse of the principal to act as attorney in | 233 |
fact for the principal is revoked, unless the power of attorney | 234 |
provides otherwise. The subsequent remarriage of the principal to | 235 |
the principal's former spouse, or the termination of a separation | 236 |
agreement between the principal and the principal's spouse, does | 237 |
not revive a power of attorney that is revoked under this section. | 238 |
Sec. 1339.66. (A)(1) Upon the filing of a motion by a | 239 |
trustee with the court that has jurisdiction over the trust, upon | 240 |
the provision of reasonable notice to all beneficiaries who are | 241 |
known and in being and who have vested or contingent interests in | 242 |
the trust, and after holding a hearing, the court may terminate | 243 |
the trust, in whole or in part, if it determines that all of the | 244 |
following apply: | 245 |
(B) If property is to be distributed from an estate being | 256 |
probated to a trust and the termination of the trust pursuant to | 257 |
this section does not clearly defeat the intent of the testator, | 258 |
the probate court has jurisdiction to order the outright | 259 |
distribution of the property or to make the property custodial | 260 |
property under sections 1339.31 to 1339.39 of the Revised Code.
A | 261 |
probate court may so order whether the application for the
order | 262 |
is made by an inter vivos trustee named in the will of the | 263 |
decedent or by a testamentary trustee. | 264 |
(C) Upon the termination of a trust pursuant to this section, | 265 |
the probate court shall order the distribution of the trust estate | 266 |
in accordance with any provision specified in the trust instrument | 267 |
for the premature termination of the trust. If there is no | 268 |
provision of that nature in the trust instrument, the probate | 269 |
court shall order the distribution of the trust estate among the | 270 |
beneficiaries of the trust in accordance with their respective | 271 |
beneficial interests and in a manner that the court determines to | 272 |
be equitable. For purposes of ordering the distribution of the | 273 |
trust estate among the beneficiaries of the trust under this | 274 |
division, the court shall consider all of the following: | 275 |
(D) Unless otherwise represented or bound, a minor, an | 282 |
incapacitated or unborn person, or a person whose identity or | 283 |
location is unknown and is not reasonably ascertainable may be | 284 |
represented by or bound by another person who has a substantially | 285 |
identical interest in the trust as that minor, incapacitated or | 286 |
unborn person, or person whose identity or location is unknown and | 287 |
is not reasonably ascertainable, but only to the extent that there | 288 |
is no conflict of interest between the person who is represented | 289 |
or bound and the person who represents or binds that person. As | 290 |
used in this division, "minor" means a person who is under | 291 |
eighteen years of age. | 292 |
Sec. 2109.62. (A)(1) Upon the filing of a motion by a | 293 |
trustee with the court that has jurisdiction over the trust, upon | 294 |
the provision of reasonable notice to all beneficiaries who are | 295 |
known and in being and who have vested or contingent interests in | 296 |
the trust, and after holding a hearing, the court may terminate | 297 |
the trust, in whole or in part, if it determines that all of the | 298 |
following apply: | 299 |
(B) If property is to be distributed from an estate being | 310 |
probated to a trust and the termination of the trust pursuant to | 311 |
this section does not clearly defeat the intent of the testator, | 312 |
the probate court has jurisdiction to order the outright | 313 |
distribution of the property or to make the property custodial | 314 |
property under sections 1339.31 to 1339.39 of the Revised Code.
A | 315 |
probate court may so order whether the application for the
order | 316 |
is made by an inter vivos trustee named in the will of the | 317 |
decedent or by a testamentary trustee. | 318 |
(C) Upon the termination of a trust pursuant to this section, | 319 |
the probate court shall order the distribution of the trust estate | 320 |
in accordance with any provision specified in the trust instrument | 321 |
for the premature termination of the trust. If there is no | 322 |
provision of that nature in the trust instrument, the probate | 323 |
court shall order the distribution of the trust estate among the | 324 |
beneficiaries of the trust in accordance with their respective | 325 |
beneficial interests and in a manner that the court determines to | 326 |
be equitable. For purposes of ordering the distribution of the | 327 |
trust estate among the beneficiaries of the trust under this | 328 |
division, the court shall consider all of the following: | 329 |
(D) Unless otherwise represented or bound, a minor, an | 336 |
incapacitated or unborn person, or a person whose identity or | 337 |
location is unknown and is not reasonably ascertainable may be | 338 |
represented by or bound by another person who has a substantially | 339 |
identical interest in the trust as that minor, incapacitated or | 340 |
unborn person, or person whose identity or location is unknown and | 341 |
is not reasonably ascertainable, but only to the extent that there | 342 |
is no conflict of interest between the person who is represented | 343 |
or bound and the person who represents or binds that person. As | 344 |
used in this division, "minor" means a person who is under | 345 |
eighteen years of age. | 346 |