As Passed by the House

126th General Assembly
Regular Session
2005-2006
Am. Sub. H. B. No. 83


Representatives Hughes, Coley, Willamowski, Allen, Barrett, Blessing, Book, Brown, Carano, Cassell, Combs, DeBose, Domenick, Evans, C., Flowers, Gilb, Harwood, Key, McGregor, J., Oelslager, Otterman, Patton, T., Perry, Reidelbach, Smith, G., Strahorn, Williams, Woodard, Yuko 



A BILL
To enact section 2109.361 of the Revised Code to 1
require the probate court, upon application by an 2
affected beneficiary, to determine the fairness of 3
an agreement requiring a fiduciary or beneficiary 4
to pay a percentage of an inheritance or a dollar 5
amount to any person other than the beneficiary 6
and to allow the probate court to approve, modify, 7
or disapprove the agreement.8


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

       Section 1. That section 2109.361 of the Revised Code be 9
enacted to read as follows:10

       Sec. 2109.361. (A) As used in this section, "third-party 11
distribution" means the distribution by a fiduciary of an estate 12
or trust of the assets of that estate or trust when both of the 13
following apply:14

        (1) The fiduciary makes the distribution to either of the 15
following persons:16

        (a) The transferee of a beneficiary;17

        (b) Any person pursuant to an agreement, request, or 18
instruction of a beneficiary or pursuant to a legal claim against 19
a beneficiary.20

        (2) The distribution is the subject of an agreement between a 21
beneficiary and any person that requires the fiduciary or 22
beneficiary to pay a percentage of an inheritance or a dollar 23
amount to any person other than the beneficiary.24

       (B) Prior to making a third-party distribution, the affected 25
beneficiary or the affected beneficiary's guardian or other legal 26
representative of the beneficiary may file an application for the approval of a 27
third-party distribution with the probate court. An application 28
filed pursuant to this division shall identify the person to whom 29
the third-party distribution is to be made, disclose the basis for 30
making the third-party distribution, and include a copy of any 31
written agreement between the affected beneficiary and the person 32
to whom the third-party distribution is to be made.33

       (C) The probate court shall hold a hearing on an application 34
filed under division (B) of this section. The applicant shall 35
serve notice of the hearing on all interested parties at least 36
fifteen days prior to the hearing in accordance with Civil Rule 37
73. An interested party may waive notice of the hearing in 38
accordance with Civil Rule 73.39

       (D) The probate court may approve the 40
third-party distribution in whole or in part, as the court 41
determines is just and equitable. To the extent that the 42
application is approved, the court shall determine whether the 43
third-party distribution is properly charged solely against the 44
beneficiary's share of the estate or trust or whether some or all 45
of the third-party distribution is properly charged against the 46
residue of the affected estate or trust. The court may consider 47
any relevant factors in evaluating the application, including, but 48
not limited to, any of the following:49

       (1) The amount or percentage of the affected beneficiary's 50
share that would be the subject of the proposed third-party 51
distribution measured against the reasonable value of any goods or 52
services the person to whom the third-party distribution would be 53
made provided to the beneficiary or to the estate or trust;54

       (2) Whether the agreement, request, or instructions of the 55
affected beneficiary were procured by duress, fraud, 56
misrepresentation, undue influence, or other unfair means;57

       (3) Whether the amount of the proposed third-party 58
distribution is fixed or contingent under the terms of the 59
agreement between the affected beneficiary and the recipient of 60
the proposed third-party distribution;61

       (4) Whether the beneficiary was represented by an attorney;62

       (5) The extent, if any, to which the recipient of the 63
proposed third-party distribution incurred expenses in connection 64
with the services provided to the affected beneficiary, estate, or 65
trust;66

       (6) Whether the beneficiary was required to advance any 67
payments for fees or expenses to the recipient of the proposed 68
third-party distribution.69

       (E) This section does not apply to third-party distributions 70
to an attorney who represents a beneficiary and does not affect 71
any other provision of law regarding the compensation of 72
attorneys.73