As Reported by the Senate Judiciary--Civil Justice Committee

127th General Assembly Regular Session 2007-2008

Sub. H. B. No. 499

Representative Oelslager 

Cosponsors: Representatives McGregor, J., Hughes, Combs, Barrett, Huffman, Mecklenborg, Coley, DeGeeter, Dyer, Harwood, Letson, Luckie 

Senator Goodman 

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A BILL

To amend sections 2109.01, 5801.01, 5801.02, 5801.06,

1

5801.10, 5803.02, 5803.03, 5804.02, 5804.11,

2

5804.13, 5804.14, 5804.17, 5805.01, 5805.03,

3

5806.01, 5806.02, 5806.03, 5806.04, 5808.13,

4

5808.14, 5808.16, 5810.05, 5810.11, 5810.13, and

5

5815.35, to enact section 5801.11, and to repeal

6

section 2109.022 of the Revised Code to modify

7

the Ohio Trust Code and the Fiduciary Law.

8

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

Section 1. That sections 2109.01, 5801.01, 5801.02, 5801.06,	9
5801.10, 5803.02, 5803.03, 5804.02, 5804.11, 5804.13, 5804.14,	10
5804.17, 5805.01, 5805.03, 5806.01, 5806.02, 5806.03, 5806.04,	11
5808.13, 5808.14, 5808.16, 5810.05, 5810.11, 5810.13, and 5815.35	12
be amended and section 5801.11 of the Revised Code be enacted to	13
read as follows:	14

Sec. 2109.01.  "Fiduciary," as used in Chapters 2101. to	15
2131. of the Revised Code, except as provided in section 2109.022	16
of the Revised Code, means any person, other than an assignee or	17
trustee for an insolvent debtor or a guardian under sections	18
5905.01 to 5905.19 of the Revised Code, appointed by and	19
accountable to the probate court and acting in a fiduciary	20
capacity for any person, or charged with duties in relation to any	21
property, interest, trust, or estate for the benefit of another;	22
and includes an agency under contract with the department of	23
mental retardation and developmental disabilities for the	24
provision of protective service under sections 5123.55 to 5123.59	25
of the Revised Code, appointed by and accountable to the probate	26
court as guardian or trustee with respect to mentally retarded or	27
developmentally disabled persons.	28

Sec. 5801.01.  As used in Chapters 5801. to 5811. of the	29
Revised Code:	30

(A) "Action," with respect to an act of a trustee, includes a	31
failure to act.	32

(B) "Ascertainable standard" means a standard relating to an	33
individual's health, education, support, or maintenance within the	34
meaning of section 2041(b)(1)(A) or 2514(c)(1) of the Internal	35
Revenue Code.	36

(C) "Beneficiary" means a person that has a present or future	37
beneficial interest in a trust, whether vested or contingent, or	38
that, in a capacity other than that of trustee, holds a power of	39
appointment over trust property, or a charitable organization that	40
is expressly designated in the terms of the trust to receive	41
distributions. "Beneficiary" does not include any charitable	42
organization that is not expressly designated in the terms of the	43
trust to receive distributions, but to whom the trustee may in its	44
discretion make distributions.	45

(D) "Beneficiary surrogate" means a person, other than a	46
trustee, designated by the settlor in the trust instrument to	47
receive notices, information, and reports otherwise required to be	48
provided to a current beneficiary under divisions (B)(8) and (9)	49
of section 5801.04 of the Revised Code.	50

(E) "Charitable trust" means a trust, or portion of a trust,	51
created for a charitable purpose described in division (A) of	52
section 5804.05 of the Revised Code.	53

(F) "Current beneficiary" means a beneficiary that, on the	54
date the beneficiary's qualification is determined, is a	55
distributee or permissible distributee of trust income or	56
principal.	57

(G) "Environmental law" means a federal, state, or local law,	58
rule, regulation, or ordinance relating to protection of the	59
environment.	60

(H) "Guardian of the estate" means a guardian appointed by a	61
court to administer the estate of any individual or to serve as	62
conservator of the property of an individual eighteen years of age	63
or older under section 2111.021 of the Revised Code.	64

(I) "Guardian of the person" means a guardian appointed by a	65
court to make decisions regarding the support, care, education,	66
health, and welfare of any individual or to serve as conservator	67
of the person of an individual eighteen years of age or older	68
under section 2111.021 of the Revised Code. "Guardian of the	69
person" does not include a guardian ad litem.	70

(J) "Internal Revenue Code" means the "Internal Revenue Code	71
of 1986," 100 Stat. 2085, 26 U.S.C. 1 et seq., as amended.	72

(K) "Interests of the beneficiaries" means the beneficial	73
interests provided in the terms of the trust.	74

(L) "Jurisdiction," with respect to a geographic area,	75
includes a state or country.	76

(M) "Mandatory distribution" means a distribution of income	77
or principal, including a distribution upon termination of the	78
trust, that the trustee is required to make to a beneficiary under	79
the terms of the trust. Mandatory distributions do not include	80
distributions that a trustee is directed or authorized to make	81
pursuant to a support or other standard, regardless of whether the	82
terms of the trust provide that the trustee "may" or "shall" make	83
the distributions pursuant to a support or other standard.	84

(N) "Person" means an individual, corporation, business	85
trust, estate, trust, partnership, limited liability company,	86
association, joint venture, government, governmental agency or	87
instrumentality, public corporation, or any other legal or	88
commercial entity.	89

(O) "Power of withdrawal" means a presently exercisable	90
general power of appointment other than a power exercisable by a	91
trustee that is limited by an ascertainable standard or that is	92
exercisable by another person only upon consent of the trustee or	93
a person holding an adverse interest.	94

(P) "Property" means anything or any interest in anything	95
that may be the subject of ownership.	96

(Q) "Qualified beneficiary" means a beneficiary to whom, on	97
the date the beneficiary's qualification is determined, any of the	98
following applies:	99

(1) The beneficiary is a distributee or permissible	100
distributee of trust income or principal.	101

(2) The beneficiary would be a distributee or permissible	102
distributee of trust income or principal if the interests of the	103
distributees described in division (Q)(1) of this section	104
terminated on that date, but the termination of those interests	105
would not cause the trust to terminate.	106

(3) The beneficiary would be a distributee or permissible	107
distributee of trust income or principal if the trust terminated	108
on that date.	109

(R) "Revocable," as applied to a trust, means revocable at	110
the time of determination by the settlor alone or by the settlor	111
with the consent of any person other than a person holding an	112
adverse interest. A trust's characterization as revocable is not	113
affected by the settlor's lack of capacity to exercise the power	114
of revocation, regardless of whether an agent of the settlor under	115
a power of attorney, or a guardian of the person or estate of the	116
settlor, is serving.	117

(S) "Settlor" means a person, including a testator, who	118
creates, or contributes property to, a trust. If more than one	119
person creates or contributes property to a trust, each person is	120
a settlor of the portion of the trust property attributable to	121
that person's contribution except to the extent another person has	122
the power to revoke or withdraw that portion.	123

(T) "Spendthrift provision" means a term of a trust that	124
restrains both voluntary and involuntary transfer of a	125
beneficiary's interest.	126

(U) "State" means a state of the United States, the District	127
of Columbia, the Commonwealth of Puerto Rico, a territory or	128
possession of the United States, or an Indian tribe or band	129
recognized by federal law or formally acknowledged by a state.	130

(V) "Terms of a trust" means the manifestation of the	131
settlor's intent regarding a trust's provisions as expressed in	132
the trust instrument or as may be established by other evidence	133
that would be admissible in a judicial proceeding.	134

(W) "Trust instrument" means an instrument executed by the	135
settlor that contains terms of the trust and any amendments to	136
that instrument.	137

(X) "Trustee" includes an original, additional, and successor	138
trustee and a cotrustee.	139

(Y)(1) "Wholly discretionary trust" means a trust to which	140
all of the following apply:	141

(a) The trust is irrevocable.

142

(b) Distributions of income or principal from the trust may	143
or shall be made to or for the benefit of the beneficiary only at	144
the trustee's discretion.	145

(c) The beneficiary does not have a power of withdrawal from	146
the trust.	147

(d) The terms of the trust use "sole," "absolute,"	148
"uncontrolled," or language of similar import to describe the	149
trustee's discretion to make distributions to or for the benefit	150
of the beneficiary.	151

(e) The terms of the trust do not provide any standards to	152
guide the trustee in exercising its discretion to make	153
distributions to or for the benefit of the beneficiary.	154

(f) The beneficiary is not the settlor, the trustee, or a	155
cotrustee.	156

(g) The beneficiary does not have the power to become the	157
trustee or a cotrustee.	158

(2) A trust may be a wholly discretionary trust with respect	159
to one or more but less than all beneficiaries.	160

(3) If a beneficiary has a power of withdrawal, the trust may	161
be a wholly discretionary trust with respect to that beneficiary	162
during any period in which the beneficiary may not exercise the	163
power. During a period in which the beneficiary may exercise the	164
power, both of the following apply:	165

(a) The portion of the trust the beneficiary may withdraw may	166
not be a wholly discretionary trust with respect to that	167
beneficiary;	168

(b) The portion of the trust the beneficiary may not withdraw	169
may be a wholly discretionary trust with respect to that	170
beneficiary.	171

(4) If the beneficiary and one or more others have made	172
contributions to the trust, the portion of the trust attributable	173
to the beneficiary's contributions may not be a wholly	174
discretionary trust with respect to that beneficiary, but the	175
portion of the trust attributable to the contributions of others	176
may be a wholly discretionary trust with respect to that	177
beneficiary. If a beneficiary has a power of withdrawal, then upon	178
the lapse, release, or waiver of the power, the beneficiary is	179
treated as having made contributions to the trust only to the	180
extent the value of the property affected by the lapse, release,	181
or waiver exceeds the greatest of the following amounts:	182

(a) The amount specified in section 2041(b)(2) or 2514(e) of	183
the Internal Revenue Code;	184

(b) If the donor of the property subject to the beneficiary's	185
power of withdrawal is not married at the time of the transfer of	186
the property to the trust, the amount specified in section 2503(b)	187
of the Internal Revenue Code;	188

(c) If the donor of the property subject to the beneficiary's	189
power of withdrawal is married at the time of the transfer of the	190
property to the trust, twice the amount specified in section	191
2503(b) of the Internal Revenue Code.	192

(5) Notwithstanding divisions (Y)(1)(f) and (g) of this	193
section, a trust may be a wholly discretionary trust if the	194
beneficiary is, or has the power to become, a trustee only with	195
respect to the management or the investment of the trust assets,	196
and not with respect to making discretionary distribution	197
decisions. With respect to a trust established for the benefit of	198
an individual who is blind or disabled as defined in 42 U.S.C.	199
1382c(a)(2) or (3), as amended, a wholly discretionary trust may	200
include either or both of the following:	201

(a) Precatory language regarding its intended purpose of	202
providing supplemental goods and services to or for the benefit of	203
the beneficiary, and not to supplant benefits from public	204
assistance programs;	205

(b) A prohibition against providing food, clothing, and	206
shelter to the beneficiary.	207

Sec. 5801.02. Except as otherwise provided in any provision	208
of Chapters 5801. to 5811. of the Revised Code, those chapters	209
apply to charitable and noncharitable inter vivos express trusts	210
and to trusts created pursuant to a statute, judgment, or decree	211
that requires the trust to be administered in the manner of an	212
express trust. Chapters 5801. to 5811. of the Revised Code apply	213
to charitable and noncharitable testamentary trusts to the extent	214
provided by section 2109.69 of the Revised Code.	215

Sec. 5801.06. (A) The law of the jurisdiction designated in	216
the terms of a trust determines the meaning and effect of the	217
terms unless the designation of that jurisdiction's law is	218
contrary to a strong public policy of the jurisdiction having the	219
most significant relationship to the matter at issue. In the	220
absence of a controlling designation in the terms of the trust,	221
the law of the jurisdiction having the most significant	222
relationship to the matter at issue determines the meaning and	223
effect of the terms.	224

(B) The administration of a trust is governed by the law	225
designated in the terms of the trust to govern trust	226
administration. If the terms of the trust do not designate the	227
governing law, both of the following apply:	228

(1) The law of the trust's principal place of administration	229
governs the administration of the trust.	230

(2) If the trust's principal place of administration is	231
transferred to another jurisdiction under section 5801.07 of the	232
Revised Code, the law of the new principal place of administration	233
of the trust governs the administration of the trust from the time	234
of the transfer.	235

Sec. 5801.10.  (A) As used in this section, "creditor" means	236
any of the following:	237

(1) A person holding a debt or security for a debt entered	238
into by a trustee on behalf of the trust;	239

(2) A person holding a debt secured by one or more assets of	240
the trust;	241

(3) A person having a claim against the trustee or the assets	242
of the trust under section 5805.06 of the Revised Code;	243

(4) A person who has attached through legal process a	244
beneficiary's interest in the trust.	245

(B) The parties to an agreement under this section shall be	246
all of the following, or their representatives under the	247
representation provisions of Chapter 5803. of the Revised Code,	248
except that only the settlor and any trustee are required to be	249
parties to an amendment of any revocable trust:	250

(1) The settlor if living and if no adverse income or	251
transfer tax results would arise from the settlor's participation;	252

(2) All beneficiaries;

253

(3) All currently serving trustees;

254

(4) Creditors, if their interest is to be affected by the	255
agreement.	256

(C) The persons specified in division (B) of this section may	257
by written instrument enter into an agreement with respect to any	258
matter concerning the construction of, administration of, or	259
distributions under the terms of the trust instrument, the	260
investment of income or principal held by the trustee, or other	261
matters. The agreement is valid only to the extent that it does	262
may not effect a termination of the trust before the date	263
specified for the trust's termination in the terms of the trust	264
instrument, does not change the interests of the beneficiaries in	265
the trust except as necessary to effect a modification described	266
in division (C)(5) or (6) of this section, and includesor include	267
terms and conditions that could not be properly approved by the	268
court under Chapters 5801. to 5811. of the Revised Code or other	269
applicable law. The invalidity of any provision of the agreement	270
does not affect the validity of other provisions of the agreement.	271
Matters that may be resolved by a private settlement agreement	272
include, but are not limited to, all of the following:	273

(1) Determining classes of creditors, beneficiaries, heirs,	274
next of kin, or other persons;	275

(2) Resolving disputes arising out of the administration or	276
distribution under the terms of the trust instrument, including	277
disputes over the construction of the language of the trust	278
instrument or construction of the language of other writings that	279
affect the terms of the trust instrument;	280

(3) Granting to the trustee necessary or desirable powers not	281
granted in the terms of the trust instrument or otherwise provided	282
by law, to the extent that those powers either are not	283
inconsistent with the express provisions or purposes of the terms	284
of the trust instrument or, if inconsistent with the express	285
provisions or purposes of the terms of the trust instrument, are	286
necessary for the due administration of the terms of the trust	287
instrument;	288

(4) Modifying the terms of the trust instrument, if the	289
modification is not inconsistent with any dominant purpose or	290
objective of the trust;	291

(5) Modifying the terms of the trust instrument in the manner	292
required to qualify the gift under the terms of the trust	293
instrument for the charitable estate or gift tax deduction	294
permitted by federal law, including the addition of mandatory	295
governing instrument requirements for a charitable remainder trust	296
as required by the Internal Revenue Code and regulations	297
promulgated under it in any case in which all parties interested	298
in the trust have submitted written agreements to the proposed	299
changes or written disclaimer of interest;	300

(6) Modifying the terms of the trust instrument in the manner	301
required to qualify any gift under the terms of the trust	302
instrument for the estate tax marital deduction available to	303
noncitizen spouses, including the addition of mandatory governing	304
instrument requirements for a qualified domestic trust under	305
section 2056A of the Internal Revenue Code and regulations	306
promulgated under it in any case in which all parties interested	307
in the trust have submitted written agreements to the proposed	308
changes or written disclaimer of interest;	309

(7) Resolving any other matter that arises under Chapters	310
5801. to 5811. of the Revised Code.	311

(D) No agreement shall be entered into under this section	312
affecting the rights of a creditor without the creditor's consent	313
or affecting the collection rights of federal, state, or local	314
taxing authorities.	315

(E) Any agreement entered into under this section that	316
complies with the requirements of division (C) of this section	317
shall be final and binding on the trustee, the settlor if living,	318
all beneficiaries, creditors who are parties to the agreement,	319
and their heirs, successors, and assigns.	320

(F) Notwithstanding anything in this section, in division (D)	321
of section 5803.03 of the Revised Code, or in any other rule of	322
law to the contrary, a trustee serving under the terms of the	323
trust instrument shall only represent its own individual or	324
corporate interests in negotiating or entering into an agreement	325
subject to this section. No trustee serving under the terms of the	326
trust instrument shall be considered to represent any settlor,	327
beneficiary, or the interests of any settlor or beneficiary in	328
negotiating or entering into an agreement subject to this section.	329

(G) Any party to a private settlement agreement entered into	330
under this section may request the court to approve the agreement,	331
to determine whether the representation as provided in Chapter	332
5803. of the Revised Code was adequate, and to determine whether	333
the agreement contains terms and conditions the court could have	334
properly approved.	335

(H) If an agreement entered into under this section contains	336
a provision requiring binding arbitration of any disputes arising	337
under the agreement, the provision is enforceable.	338

(I) Nothing in this section affects any of the following:

339

(1) The right of a beneficiary to disclaim under section	340
5815.36 of the Revised Code;	341

(2) The termination or modification of a trust under section	342
5804.10, 5804.11, 5804.12, 5804.13, 5804.14, 5804.15, or 5804.16	343
of the Revised Code;	344

(3) The ability of a trustee to divide or consolidate a trust	345
under section 5804.17 of the Revised Code.	346

(J) Nothing in this section restricts or limits the	347
jurisdiction of any court to dispose of matters not covered by	348
agreements under this section or to supervise the acts of trustees	349
appointed by that court.	350

(K) This section shall be liberally construed to favor the	351
validity and enforceability of agreements entered into under it.	352

(L) A trustee serving under the trust instrument is not	353
liable to any third person arising from any loss due to that	354
trustee's actions or inactions taken or omitted in good faith	355
reliance on the terms of an agreement entered into under this	356
section.	357

(M) This section does not apply to any of the following:

358

(1) A charitable trust that has one or more charitable	359
organizations as qualified beneficiaries;	360

(2) A charitable trust the terms of which authorize or direct	361
the trustee to distribute trust income or principal to one or more	362
charitable organizations to be selected by the trustee, or for one	363
or more charitable purposes described in division (A) of section	364
5804.05 of the Revised Code, if any of the following apply:	365

(a) The distributions may be made on the date that an	366
agreement under this section would be entered into.	367

(b) The distributions could be made on the date that an	368
agreement under this section would be entered into if the	369
interests of the current beneficiaries of the trust terminated on	370
that date, but the termination of those interests would not cause	371
the trust to terminate.	372

(c) The distributions could be made on the date that an	373
agreement under this section would be entered into if the trust	374
terminated on that date.	375

Sec. 5801.11. A guardian of the estate or person, in acting	376
under Chapters 5801. to 5811. of the Revised Code, shall comply	377
with the guardian's duties under Chapter 2111. of the Revised Code	378
or other applicable law.	379

Sec. 5803.02.  To the extent there is no conflict of interest	380
between the holder of a general testamentary power of appointment	381
and the persons represented with respect to the particular	382
question or dispute, the holder may represent and bind persons	383
whose interests, as permissible appointees, takers in default, or	384
otherwise, are subject to the power. The rights of the holder of a	385
presently exercisable general power of appointment are governed by	386
section 5806.03 of the Revised Code.	387

Sec. 5803.03.  To the extent there is no conflict of interest	388
between the representative and the person represented or among	389
those being represented with respect to a particular question or	390
dispute, all of the following apply:	391

(A) A guardian of the estate may represent and bind the	392
estate that the guardian of the estate controls.	393

(B) A guardian of the person may represent and bind the ward	394
if a guardian of the estate has not been appointed.	395

(C) An agent having authority to act with respect to the	396
particular question or dispute may represent and bind the	397
principal.	398

(D) Except as provided in division (F) of section 5801.10 of	399
the Revised Code, a trustee may represent and bind the	400
beneficiaries of the trust.	401

(E) A personal representative of a decedent's estate may	402
represent and bind persons interested in the estate.	403

(F) A parent may represent and bind the parent's minor or	404
unborn child if neither a guardian for the child's estate or a	405
guardian of the person has been appointed. If a minor or unborn	406
child is not represented by a parent under this division, another	407
person may represent and bind the minor or unborn child under	408
section 5803.04 of the Revised Code if the requirements of that	409
section are met.	410

Sec. 5804.02.  (A) A trust is created only if all of the	411
following apply:	412

(1) The settlor of the trust, other than the settlor of a	413
trust created by a court order, has capacity to create a trust.	414

(2) The settlor of the trust, other than the settlor of a	415
trust created by a court order, indicates an intention to create	416
the trust.	417

(3) The trust has a definite beneficiary or is one of the	418
following:	419

(a) A charitable trust;

420

(b) A trust for the care of an animal, as provided in section	421
5804.08 of the Revised Code;	422

(c) A trust for a noncharitable purpose, as provided in	423
section 5804.09 of the Revised Code.	424

(4) The trustee has duties to perform.

425

(5) The same person is not the sole trustee and sole	426
beneficiary.	427

(B) A beneficiary is definite if the beneficiary can be	428
ascertained now or in the future, subject to any applicable rule	429
against perpetuities.	430

(C) A power in a trustee or other person to select a	431
beneficiary from an indefinite class is valid. If the power is not	432
exercised within a reasonable time, the power fails, and the	433
property subject to the power passes to the persons who would have	434
taken the property had the power not been conferred.	435

(D) A trust is valid regardless of the existence, size, or	436
character of the corpus of the trust. This division applies to any	437
trust instrument that was executed prior to, or is executed on or	438
after, the effective date of Chapters 5801. to 5811. of the	439
Revised CodeJanuary 1, 2007.	440

(E) A trust is not invalid because a person, including, but	441
not limited to, the creator of the trust, is or may become the	442
sole trustee and the sole holder of the present beneficial	443
enjoyment of the corpus of the trust, provided that one or more	444
other persons hold a vested, contingent, or expectant interest	445
relative to the enjoyment of the corpus of the trust upon the	446
cessation of the present beneficial enjoyment. A merger of the	447
legal and equitable titles to the corpus of a trust described in	448
this division does not occur in its creator, and, notwithstanding	449
any contrary provision of Chapter 2107. of the Revised Code, the	450
trust is not a testamentary trust that is required to comply with	451
that chapter in order for its corpus to be legally distributed to	452
other beneficiaries in accordance with the provisions of the trust	453
upon the cessation of the present beneficial enjoyment. This	454
division applies to any trust that satisfies the provisions of	455
this division, whether the trust was executed prior to, on, or	456
after October 10, 1991.	457

Sec. 5804.11.  (A) If upon petition the court finds that the	458
settlor and all beneficiaries consent to the modification or	459
termination of a noncharitable irrevocable trust, that all	460
consents, including any given by representatives under Chapter	461
5803. of the Revised Code, are valid, and that all parties giving	462
consent are competent to do so, the court shall enter an order	463
approving the modification or termination even if the	464
modification or termination is inconsistent with a material	465
purpose of the trust. An agent under a power of attorney may	466
exercise a settlor's power to consent to a trust's modification	467
or termination only to the extent expressly authorized by both	468
the power of attorney and the terms of the trust. The settlor's	469
guardian of the estate may exercise a settlor's power to consent	470
to a trust's modification or termination with the approval of the	471
court supervising the guardianship if an agent is not so	472
authorized. The guardian of the settlor's person may exercise a	473
settlor's power to consent to a trust's modification or	474
termination with the approval of the court supervising the	475
guardianship if an agent is not so authorized and a guardian of	476
the estate has not been appointed. This division applies only to	477
irrevocable trusts created on or after the effective date of	478
Chapters 5801. to 5811. of the Revised Code and to revocable	479
trusts that become irrevocable on or after the effective date of	480
Chapters 5801. to 5811. of the Revised Code. This division does	481
not apply to a noncharitable irrevocable trust described in 42	482
U.S.C. 1396p(d)(4).	483

(B) A noncharitable irrevocable trust may be terminated upon	484
consent of all of the beneficiaries if the court concludes that	485
continuance of the trust is not necessary to achieve any material	486
purpose of the trust. A noncharitable irrevocable trust may be	487
modified, but not to remove or replace the trustee, upon consent	488
of all of the beneficiaries if the court concludes that	489
modification is not inconsistent with a material purpose of the	490
trust. A spendthrift provision in the terms of the trust may, but	491
is not presumed to, constitute a material purpose of the trust.	492

(C) Upon termination of a trust under division (A) or (B) of	493
this section, the trustee shall distribute the trust property as	494
agreed by the beneficiaries.	495

(D) If not all of the beneficiaries consent to a proposed	496
modification or termination of the trust under division (A) or (B)	497
of this section, the court may approve the modification or	498
termination if the court is satisfied of both of the following:	499

(1) That if all of the beneficiaries had consented, the trust	500
could have been modified or terminated under this section;	501

(2) That the interests of a beneficiary who does not consent	502
will be adequately protected.	503

Sec. 5804.13.  (A) Except as otherwise provided in division	504
(B) of this section, if a particular charitable purpose becomes	505
unlawful, impracticable, or impossible to achieve, all of the	506
following apply:	507

(1) The trust does not fail in whole or in part.

508

(2) The trust property does not revert to the settlor or the	509
settlor's successors in interest.	510

(3) The court may apply cy pres to modify or terminate the	511
trust by directing that the trust property be applied or	512
distributed, in whole or in part, in a manner consistent with the	513
settlor's charitable purposes. In accordance with section 109.25	514
of the Revised Code, the attorney general is a necessary party to	515
a judicial proceeding brought under this section.	516

(B) A provision in the terms of a charitable trust for an	517
alternative charitable purpose or for the distribution of the	518
trust property to a noncharitable beneficiary prevails over the	519
power of the court under division (A) of this section to apply cy	520
pres to modify or terminate the trust.	521

Sec. 5804.14.  (A)(1) Except as provided in division (A)(2)	522
of this section, after notice to the qualified beneficiaries, the	523
trustee of an inter vivos trust consisting of trust property	524
having a total value of less than one hundred thousand dollars may	525
terminate the trust if the trustee concludes that the value of the	526
trust property is insufficient to justify the cost of	527
administration.	528

(2) Division (A)(1) of this section does not apply to any of	529
the following:	530

(a) A charitable trust that has one or more charitable	531
organizations as qualified beneficiaries;	532

(b) A charitable trust the terms of which authorize or direct	533
the trustee to distribute trust income or principal to one or more	534
charitable organizations to be selected by the trustee, or for one	535
or more charitable purposes described in division (A) of section	536
5804.05 of the Revised Code, if any of the following apply:	537

(i) The distributions may be made on the date that the trust	538
would be terminated under division (A)(1) of this section.	539

(ii) The distributions could be made on the date that the	540
trust would be terminated under division (A)(1) of this section if	541
the interests of the current beneficiaries of the trust terminated	542
on that date, but the termination of those interests would not	543
cause the trust to terminate.	544

(iii) The distributions could be made on the date that the	545
trust would be terminated under division (A)(1) of this section,	546
if the trust terminated on that date but not under that division.	547

(B) If an inter vivos trust consists of trust property having	548
a total value of less than one hundred thousand dollars, the court	549
may modify or terminate the trust or remove the trustee and	550
appoint a different trustee if it determines that the value of the	551
trust property is insufficient to justify the cost of	552
administration.	553

(C) Upon the termination of a trust pursuant to division	554
(A)(1) of this section, the trustee shall distribute the trust	555
estate in accordance with any provision specified in the terms of	556
the trust instrument for the premature termination of the trust.	557
If there is no provision of that nature in the terms of the trust	558
instrument, the trustee shall distribute the trust estate among	559
the beneficiaries of the trust in accordance with their respective	560
beneficial interests and in a manner that the trustee determines	561
to be equitable. For purposes of distributing the trust estate	562
among the beneficiaries of the trust under this division, the	563
trustee shall consider all of the following:	564

(1) The existence of any agreement among the beneficiaries	565
with respect to their beneficial interests;	566

(2) The actuarial values of the separate beneficial interests	567
of the beneficiaries;	568

(3) Any expression of preference of the beneficiaries that is	569
contained in the terms of the trust instrument.	570

(D) Upon the termination of a trust pursuant to division (B)	571
of this section, the probate court shall order the distribution of	572
the trust estate in accordance with any provision specified in the	573
terms of the trust instrument for the premature termination of the	574
trust. If there is no provision of that nature in the terms of the	575
trust instrument, the probate court shall order the distribution	576
of the trust estate among the beneficiaries of the trust in	577
accordance with their respective beneficial interests and in a	578
manner that the court determines to be equitable. For purposes of	579
ordering the distribution of the trust estate among the	580
beneficiaries of the trust under this division, the court shall	581
consider the three factors listed in division (C) of this section.	582

(E) The existence of a spendthrift or similar provision in	583
the terms of a trust instrument or will does not preclude the	584
termination of a trust pursuant to this section.	585

(F) This section does not apply to an easement for	586
conservation or preservation.	587

Sec. 5804.17.  After notice to the qualified beneficiaries, a	588
trustee may combine two or more trusts into a single trust or	589
divide a trust into two or more separate trusts if the result does	590
not substantially impair the rights of any beneficiary or	591
adversely affecthave a materially adverse effect on the	592
achievement of the purposes of the trust.	593

Sec. 5805.01.  (A) A spendthrift provision is valid only if	594
it restrains both voluntary and involuntary transfer of a	595
beneficiary's interest or if it restrains involuntary transfer of	596
a beneficiary's interest and permits voluntary transfer of a	597
beneficiary's interest only with the consent of a trustee who is	598
not the beneficiary.	599

(B) A term of a trust providing that the interest of a	600
beneficiary is held subject to a "spendthrift trust," or words of	601
similar import, is sufficient to restrain both voluntary and	602
involuntary transfer of the beneficiary's interest.	603

(C) A beneficiary may not transfer an interest in a trust in	604
violation of a valid spendthrift provision and, except as	605
otherwise provided in this chapter and in section 5810.04 of the	606
Revised Code, a creditor or assignee of the beneficiary may not	607
reach the interest or a distribution by the trustee before its	608
receipt by the beneficiary. Real property or tangible personal	609
property that is owned by the trust but that is made available for	610
a beneficiary's use or occupancy in accordance with the trustee's	611
authority under the terms of the trust instrument shall not be	612
considered to have been distributed by the trustee or received by	613
the beneficiary for purposes of allowing a creditor or assignee of	614
the beneficiary to reach the property.	615

Sec. 5805.03.  Notwithstanding anything to the contrary in	616
division (B) of section 5805.02 of the Revised Code, no creditor	617
or assignee of a beneficiary of a wholly discretionary trust may	618
reach the beneficiary's interest in the trust, or a distribution	619
by the trustee before its receipt by the beneficiary, whether by	620
attachment of present or future distributions to or for the	621
benefit of the beneficiary, by judicial sale, by obtaining an	622
order compelling the trustee to make distributions from the trust,	623
or by any other means, regardless of whether the terms of the	624
trust instrument includesinclude a spendthrift provision.	625

Sec. 5806.01.  The capacity of a settlor required to create,	626
amend, revoke, or add property to a revocable trust, or to direct	627
the actions of the trustee of a revocable trust, is the same as	628
that required to make a will.	629

Sec. 5806.02.  (A) Unless the terms of a trust expressly	630
provide that the trust is irrevocable, the settlor may revoke or	631
amend the trust. This division does not apply to a trust created	632
under an instrument executed before the effective date of this	633
sectionJanuary 1, 2007.	634

(B) If a revocable trust is created or funded by more than	635
one settlor, all of the following apply:	636

(1) To the extent the trust consists of community property,	637
either spouse acting alone may revoke the trust, but the trust may	638
be amended only by joint action of both spouses.	639

(2) To the extent the trust consists of property other than	640
community property, each settlor may revoke or amend the trust	641
with regard to the portion of the trust property attributable to	642
that settlor's contribution.	643

(3) Upon the revocation or amendment of the trust by less	644
than all of the settlors, the trustee shall promptly notify the	645
other settlors of the revocation or amendment.	646

(C) The settlor may revoke or amend a revocable trust by	647
substantial compliance with a method provided in the terms of the	648
trust or, if the terms of the trust do not provide a method, by	649
any other method manifesting clear and convincing evidence of the	650
settlor's intent, provided that a revocable trust may not be	651
revoked or amended by a will or codicil, regardless of whether it	652
refers to the trust or specifically devises property that would	653
otherwise have passed according to the terms of the trust unless	654
the terms of the trust expressly allow it to be revoked or amended	655
by a will or codicil.	656

(D) Upon revocation of a revocable trust, the trustee shall	657
deliver the trust property as the settlor directs.	658

(E) An agent under a power of attorney may exercise a	659
settlor's powers with respect to revocation, amendment, or	660
distribution of trust property only to the extent expressly	661
authorized by both the terms of the trust and the power.	662

(F) A guardian of the estate of the settlor or, if no	663
guardian of the estate has been appointed, a guardian of the	664
person of the settlor may exercise a settlor's powers with respect	665
to revocation, amendment, or distribution of trust property only	666
with the approval of the court supervising the guardianship.	667

(G) A trustee who does not know that a trust has been revoked	668
or amended is not liable to the settlor or settlor's successors in	669
interest for distributions made and other actions taken on the	670
assumption that the trust had not been amended or revoked.	671

Sec. 5806.03.  (A) During the lifetime of the settlor of a	672
revocable trust, whether or not the settlor has capacity to revoke	673
the trust, the rights of the beneficiaries are subject to the	674
control of the settlor, and the duties of the trustee, including	675
the duties to inform and report under section 5808.13 of the	676
Revised Code, are owed exclusively to, the settlor. If the trustee	677
breaches its duty during the lifetime of the settlor, any recovery	678
obtained from the trustee after the settlor becomes incapacitated	679
or dies shall be apportioned by the court. If the settlor is	680
living when the recovery is obtained, the court shall apportion	681
the recovery between the settlor and the trust, or allocate the	682
entire recovery to the settlor or the trust, as it determines to	683
be equitable under the circumstances. If the settlor is not living	684
when the recovery is obtained, the court shall apportion the	685
recovery between the settlor's estate and the trust, or allocate	686
the entire recovery to the settlor's estate or the trust, as it	687
determines to be equitable under the circumstances.	688

(B) During the period the power may be exercised, the holder	689
of a power of withdrawal has the rights of a settlor of a	690
revocable trust under this section to the extent of the property	691
subject to the power.	692

Sec. 5806.04.  (A) Any of the following actions pertaining to	693
a revocable trust that is made irrevocable by the death of the	694
settlor of the trust shall be commenced withinby the earlier of	695
the date that is two years after the date of the death of the	696
settlor of the trust or that is six months from the date on which	697
the trustee sends the person bringing the action a copy of the	698
trust instrument and a notice informing the person of the trust's	699
existence, of the trustee's name and address, and of the time	700
allowed under this division for commencing an action:	701

(1) An action to contest the validity of the trust;

702

(2) An action to contest the validity of any amendment to the	703
trust that was made during the lifetime of the settlor of the	704
trust;	705

(3) An action to contest the revocation of the trust during	706
the lifetime of the settlor of the trust;	707

(4) An action to contest the validity of any transfer made to	708
the trust during the lifetime of the settlor of the trust.	709

(B) Upon the death of the settlor of a revocable trust that	710
was made irrevocable by the death of the settlor, the trustee,	711
without liability, may proceed to distribute the trust property in	712
accordance with the terms of the trust unless either of the	713
following applies:	714

(1) The trustee has actual knowledge of a pending action to	715
contest the validity of the trust, any amendment to the trust, the	716
revocation of the trust, or any transfer made to the trust during	717
the lifetime of the settlor of the trust.	718

(2) The trustee receives written notification from a	719
potential contestant of a potential action to contest the validity	720
of the trust, any amendment to the trust, the revocation of the	721
trust, or any transfer made to the trust during the lifetime of	722
the settlor of the trust, and the action is actually filed within	723
ninety days after the written notification was given to the	724
trustee.	725

(C) If a distribution of trust property is made pursuant to	726
division (B) of this section, a beneficiary of the trust shall	727
return any distribution to the extent that it exceeds the	728
distribution to which the beneficiary is entitled if the trust, an	729
amendment to the trust, or a transfer made to the trust later is	730
determined to be invalid.	731

(D) This section applies only to revocable trusts that are	732
made irrevocable by the death of the settlor of the trust if the	733
grantor dies on or after July 23, 2002.	734

Sec. 5808.13.  (A) A trustee shall keep the current	735
beneficiaries of the trust reasonably informed about the	736
administration of the trust and of the material facts necessary	737
for them to protect their interests. Unless unreasonable under the	738
circumstances, a trustee shall promptly respond to a beneficiary's	739
request for information related to the administration of the	740
trust.	741

(B) A trustee shall do all of the following:

742

(1) Upon the request of a beneficiary, promptly furnish to	743
the beneficiary a copy of the trust instrument. Unless the	744
beneficiary expressly requests a copy of the entire trust	745
instrument, the trustee may furnish to the beneficiary a copy of a	746
redacted trust instrument that includes only those provisions of	747
the trust instrument that the trustee determines are relevant to	748
the beneficiary's interest in the trust. If the beneficiary	749
requests a copy of the entire trust instrument after receiving a	750
copy of a redacted trust instrument, the trustee shall furnish a	751
copy of the entire trust instrument to the beneficiary. If the	752
settlor of a revocable trust that has become irrevocable has	753
completely restated the terms of the trust, the trust instrument	754
furnished by the trustee shall be the restated trust instrument,	755
including any amendments to the restated trust instrument. Nothing	756
in division (B)(1) of this section limits the ability of a	757
beneficiary to obtain a copy of the original trust instrument, any	758
other restatements of the original trust instrument, or amendments	759
to the original trust instrument and any other restatements of the	760
original trust instrument in a judicial proceeding with respect to	761
the trust.	762

(2) Within sixty days after accepting a trusteeship, notify	763
the current beneficiaries of the acceptance and of the trustee's	764
name, address, and telephone number;	765

(3) Within sixty days after the date the trustee acquires	766
knowledge of the creation of an irrevocable trust, or the date the	767
trustee acquires knowledge that a formerly revocable trust has	768
become irrevocable, whether by the death of the settlor or	769
otherwise, notify the current beneficiaries of the trust's	770
existence, of the identity of the settlor or settlors, of the	771
right to request a copy of the trust instrument, and of the right	772
to a trustee's report as provided in division (C) of this section;	773

(4) Notify the current beneficiaries in advance of any change	774
in the method or rate of the trustee's compensation.	775

(C) A trustee of a trust that has a fiscal year ending on or	776
after January 1, 2007, shall send to the current beneficiaries,	777
and to other beneficiaries who request it, at least annually and	778
at the termination of the trust, a report of the trust property,	779
liabilities, receipts, and disbursements, including the source and	780
amount of the trustee's compensation, a listing of the trust	781
assets, and, if feasible, the trust assets' respective market	782
values. Upon a vacancy in a trusteeship, unless a cotrustee	783
remains in office, a report for the period during which the former	784
trustee served must be sent to the current beneficiaries by the	785
former trustee. A personal representative or guardian may send the	786
current beneficiaries a report on behalf of a deceased or	787
incapacitated trustee.	788

(D) A beneficiary may waive the right to a trustee's report	789
or other information otherwise required to be furnished under this	790
section. A beneficiary, with respect to future reports and other	791
information, may withdraw a waiver previously given.	792

(E) The trustee may provide information and reports to	793
beneficiaries to whom the provided information and reports are not	794
required to be provided under this section.	795

(F) Divisions (B)(2) and (3) of this section apply only to a	796
trustee who accepts a trusteeship on or after the effective date	797
of this sectionJanuary 1, 2007, to an irrevocable trust created	798
on or after the effective date of this sectionJanuary 1, 2007,	799
and to a revocable trust that becomes irrevocable on or after the	800
effective date of this sectionJanuary 1, 2007.	801

(G) During the lifetime of the settlor of a revocable trust,	802
whether or not the settlor has capacity to revoke the trust, the	803
trustee's duties under this section are owed exclusively to the	804
settlor.	805

Sec. 5808.14.  (A) The judicial standard of review for	806
discretionary trusts is that the trustee shall exercise a	807
discretionary power reasonably, in good faith, and in accordance	808
with the terms and purposes of the trust and the interests of the	809
beneficiaries, except that with respect to distribution decisions	810
a reasonableness standard shall not be applied to the exercise of	811
discretion by the trustee of a wholly discretionary trust. The	812
greater the grant of discretion by the settlor to the trustee, the	813
broader the range of permissible conduct by the trustee in	814
exercising it.	815

(B) Subject to division (D) of this section, and unless the	816
terms of the trust expressly indicate that a rule in this division	817
does not apply:	818

(1) A person other than a settlor who is a beneficiary and	819
trustee of a trust that confers on the trustee a power to make	820
discretionary distributions to or for the trustee's personal	821
benefit may exercise the power only in accordance with an	822
ascertainable standard.	823

(2) A trustee may not exercise a power to make discretionary	824
distributions to satisfy a legal obligation of support that the	825
trustee personally owes another person.	826

(C) A power whose exercise is limited or prohibited by	827
division (B) of this section may be exercised by a majority of the	828
remaining trustees whose exercise of the power is not so limited	829
or prohibited. If the power of all trustees is so limited or	830
prohibited, the court may appoint a special fiduciary with	831
authority to exercise the power.	832

(D) Division (B) of this section does not apply to any of the	833
following:	834

(1) A power held by the settlor's spouse who is the trustee	835
of a trust for which a marital deduction, as defined in section	836
2056(b)(5) or 2523(e) of the Internal Revenue Code, was previously	837
allowed;	838

(2) Any trust during any period that the trust may be revoked	839
or amended by its settlor;	840

(3) A trust if contributions to the trust qualify for the	841
annual exclusion under section 2503(c) of the Internal Revenue	842
Code.	843

Sec. 5808.16.  Without limiting the authority conferred by	844
section 5808.15 of the Revised Code, a trustee may do all of the	845
following:	846

(A) Collect trust property and accept or reject additions to	847
the trust property from a settlor or any other person;	848

(B) Acquire or sell property, for cash or on credit, at	849
public or private sale;	850

(C) Exchange, partition, or otherwise change the character of	851
trust property;	852

(D) Deposit trust money in an account in a regulated	853
financial-service institution;	854

(E) Borrow money, with or without security, and mortgage or	855
pledge trust property for a period within or extending beyond the	856
duration of the trust;	857

(F) With respect to an interest in a proprietorship,	858
partnership, limited liability company, business trust,	859
corporation, or other form of business or enterprise, continue the	860
business or other enterprise and take any action that may be taken	861
by shareholders, members, or property owners, including merging,	862
dissolving, or otherwise changing the form of business	863
organization or contributing additional capital;	864

(G) With respect to stocks or other securities, exercise the	865
rights of an absolute owner, including the right to do any of the	866
following:	867

(1) Vote, or give proxies to vote, with or without power of	868
substitution, or enter into or continue a voting trust agreement;	869

(2) Hold a security in the name of a nominee or in other form	870
without disclosure of the trust so that title may pass by	871
delivery;	872

(3) Pay calls, assessments, and other sums chargeable or	873
accruing against the securities and sell or exercise stock	874
subscription or conversion rights;	875

(4) Deposit the securities with a depositary or other	876
regulated financial-service institution.	877

(H) With respect to an interest in real property, construct,	878
or make ordinary or extraordinary repairs to, alterations to, or	879
improvements in, buildings or other structures, demolish	880
improvements, raze existing or erect new party walls or buildings,	881
subdivide or develop land, dedicate land to public use or grant	882
public or private easements, and make or vacate plats and adjust	883
boundaries;	884

(I) Enter into a lease for any purpose as lessor or lessee,	885
including a lease or other arrangement for exploration and removal	886
of natural resources, with or without the option to purchase or	887
renew, for a period within or extending beyond the duration of the	888
trust;	889

(J) Grant an option involving a sale, lease, or other	890
disposition of trust property or acquire an option for the	891
acquisition of property, including an option exercisable beyond	892
the duration of the trust, and exercise an option so acquired;	893

(K) Insure the property of the trust against damage or loss	894
and insure the trustee, the trustee's agents, and beneficiaries	895
against liability arising from the administration of the trust;	896

(L) Abandon or decline to administer property of no value or	897
of insufficient value to justify its collection or continued	898
administration;	899

(M) With respect to possible liability for violation of	900
environmental law, do any of the following:	901

(1) Inspect or investigate property the trustee holds or has	902
been asked to hold, or property owned or operated by an	903
organization in which the trustee holds or has been asked to hold	904
an interest, for the purpose of determining the application of	905
environmental law with respect to the property;	906

(2) Take action to prevent, abate, or otherwise remedy any	907
actual or potential violation of any environmental law affecting	908
property held directly or indirectly by the trustee, whether taken	909
before or after the assertion of a claim or the initiation of	910
governmental enforcement;	911

(3) Decline to accept property into trust or disclaim any	912
power with respect to property that is or may be burdened with	913
liability for violation of environmental law;	914

(4) Compromise claims against the trust that may be asserted	915
for an alleged violation of environmental law;	916

(5) Pay the expense of any inspection, review, abatement, or	917
remedial action to comply with environmental law.	918

(N) Pay or contest any claim, settle a claim by or against	919
the trust, and release, in whole or in part, a claim belonging to	920
the trust;	921

(O) Pay taxes, assessments, compensation of the trustee and	922
of employees and agents of the trust, and other expenses incurred	923
in the administration of the trust;	924

(P) Exercise elections with respect to federal, state, and	925
local taxes;	926

(Q) Select a mode of payment under any employee benefit or	927
retirement plan, annuity, or life insurance policy payable to the	928
trustee, exercise rights under any employee benefit or retirement	929
plan, annuity, or life insurance policy payable to the trustee,	930
including the right to indemnification for expenses and against	931
liabilities, and take appropriate action to collect the proceeds;	932

(R) Make loans out of trust property, including loans to a	933
beneficiary on terms and conditions the trustee considers to be	934
fair and reasonable under the circumstances, and the trustee has a	935
lien on future distributions for repayment of those loans;	936

(S) Pledge the property of a revocable trust to guarantee	937
Guarantee loans made by others to the settlor of thea revocable	938
trust, orand, if the settlor so directs, to guarantee loans made	939
by others to a third party and mortgage, pledge, or grant a	940
security interest in the property of a revocable trust to secure	941
the payment of loans made by others to the settlor of the	942
revocable trust and, if the settlor so directs, loans made by	943
others to a third party;	944

(T) Appoint a trustee to act in another jurisdiction with	945
respect to trust property located in the other jurisdiction,	946
confer upon the appointed trustee all of the powers and duties of	947
the appointing trustee, require that the appointed trustee furnish	948
security, and remove any trustee so appointed;	949

(U) Pay an amount distributable to a beneficiary who is under	950
a legal disability or who the trustee reasonably believes is	951
incapacitated, by paying it directly to the beneficiary or	952
applying it for the beneficiary's benefit, or by doing any of the	953
following:	954

(1) Paying it to the beneficiary's guardian of the estate,	955
or, if the beneficiary does not have a guardian of the estate, the	956
beneficiary's guardian of the person;	957

(2) Paying it to the beneficiary's custodian under sections	958
5814.01 to 5814.09 of the Revised Code and, for that purpose,	959
creating a custodianship;	960

(3) If the trustee does not know of a guardian of the person	961
or estate, or custodian, paying it to an adult relative or other	962
person having legal or physical care or custody of the	963
beneficiary, to be expended on the beneficiary's behalf;	964

(4) Managing it as a separate fund on the beneficiary's	965
behalf, subject to the beneficiary's continuing right to withdraw	966
the distribution.	967

(V) On distribution of trust property or the division or	968
termination of a trust, make distributions in divided or undivided	969
interests, allocate particular assets in proportionate or	970
disproportionate shares, value the trust property for those	971
purposes, and adjust for resulting differences in valuation;	972

(W) Resolve a dispute concerning the interpretation of the	973
trust or its administration by mediation, arbitration, or other	974
procedure for alternative dispute resolution;	975

(X) Prosecute or defend an action, claim, or judicial	976
proceeding in any jurisdiction to protect trust property and the	977
trustee in the performance of the trustee's duties;	978

(Y) Sign and deliver contracts and other instruments that are	979
useful to achieve or facilitate the exercise of the trustee's	980
powers;	981

(Z) On termination of the trust, exercise the powers	982
appropriate to wind up the administration of the trust and	983
distribute the trust property to the persons entitled to it;	984

(AA) Employ agents, attorneys, accountants, investment	985
advisors, and other professionals.	986

Sec. 5810.05.  (A) A beneficiary may not commence a	987
proceeding against a trustee for breach of trust more than two	988
years after the date the beneficiary, a representative of the	989
beneficiary, or a beneficiary surrogate is sent a report that	990
adequately discloses the existence of a potential claim for breach	991
of trust and informs the beneficiary, the representative of the	992
beneficiary, or the beneficiary surrogate of the time allowed for	993
commencing a proceeding against a trustee.	994

(B) A report adequately discloses the existence of a	995
potential claim for breach of trust if it provides sufficient	996
information so that the beneficiary or the representative of the	997
beneficiary knows of the potential claim or should know of the	998
existence of the potential claim.	999

(C) If division (A) of this section does not apply,	1000
notwithstanding section 2305.09 of the Revised Code, a judicial	1001
proceeding by a beneficiary against a trustee for breach of trust	1002
must be commenced within four years after the first of the	1003
following to occur:	1004

(1) The removal, resignation, or death of the trustee;

1005

(2) The termination of the beneficiary's interest in the	1006
trust;	1007

(3) The termination of the trust;

1008

(4) The time at which the beneficiary knew or should have	1009
known of the breach of trust.	1010

(D) Nothing in Chapters 5801. to 5811. of the Revised Code	1011
limits the operation of any principle of law or equity, including	1012
the doctrines of laches, unclean hands, estoppel, and waiver, that	1013
can bar claims.	1014

Sec. 5810.11.  (A)(1) Except as otherwise provided in	1015
division (C) of this section or unless personal liability is	1016
imposed in the contract, a trustee who holds an interest as a	1017
general partner in a general or limited partnership is not	1018
personally liable on a contract entered into by the partnership	1019
after the trust's acquisition of the interest if the fiduciary	1020
capacity was disclosed. A partnership certificate that is filed	1021
pursuant to Chapter 1777. or another chapter of the Revised Code	1022
and that indicates that a trustee holds a general partnership	1023
interest in a fiduciary capacity by the use following the name or	1024
signature of the trustee of the words "as trustee" or other words	1025
that indicate the trustee's fiduciary capacity constitutes a	1026
sufficient disclosure for purposes of this division.	1027

(2) If a partnership certificate is not required to be filed	1028
pursuant to Chapter 1777. or another chapter of the Revised Code,	1029
a sufficient disclosure for purposes of division (A) of this	1030
section can be made by a trustee if a certificate that is filed	1031
with the recorder of the county in which the partnership's	1032
principal office or place of business is situated and with the	1033
recorder of each county in which the partnership owns real estate	1034
satisfies all of the following requirements:	1035

(a) The certificate states in full the names of all persons	1036
holding interests in the partnership and their places of	1037
residence.	1038

(b) The certificate is signed by all persons who are general	1039
partners in the partnership and is acknowledged by a person	1040
authorized to take acknowledgements of deeds.	1041

(c) The certificate uses the words "trustee under the (will	1042
or trust) of (name of decedent or settlor)," or other words that	1043
indicate the trustee's fiduciary capacity, following the trustee's	1044
name or signature.	1045

(3) A contract or other written instrument that is delivered	1046
to a party that contracts with the partnership in which a trustee	1047
holds a general partnership interest in a fiduciary capacity and	1048
that indicates that the trustee so holds the interest constitutes	1049
a disclosure for purposes of division (A)(1) of this section with	1050
respect to transactions between the party and the partnership. If	1051
a disclosure has been made by a certificate in accordance with	1052
division (A) of this section, a disclosure for purposes of	1053
division (A) of this section with respect to such transactions	1054
exists regardless of whether a contract or other instrument	1055
indicates the trustee holds the general partnership interest in a	1056
fiduciary capacity.	1057

(B) Except as otherwise provided in division (C) of this	1058
section, a trustee who holds an interest as a general partner in a	1059
general or limited partnership is not personally liable for torts	1060
committed by the partnership or for obligations arising from	1061
ownership or control of the interest unless the trustee is	1062
personally at fault.	1063

(C) The immunity provided by this section does not apply if	1064
an interest in the partnership is held by the trustee in a	1065
capacity other than that of trustee or is held by the trustee's	1066
spouse or one or more of the trustee's descendants, siblings, or	1067
parents, or the spouse of any of them.	1068

(D) If the trustee of a revocable trust holds an interest as	1069
a general partner in a general or limited partnership, the settlor	1070
is personally liable for contracts and other obligations of the	1071
partnership as if the settlor were a general partner.	1072

(E) The liability limitations in this section apply to	1073
trustees as partners notwithstanding the broader personal	1074
liabilities otherwise imposed by any partnership law.	1075

(F) If a trust is identified as a partner, the reference is	1076
deemed to be to, and the partner is, the current trustee or	1077
trustees of the trust and their successors as trustees.	1078

Sec. 5810.13.  (A) Instead of furnishing a copy of the trust	1079
instrument to a person other than a beneficiary, the trustee may	1080
furnish to the person a certification of trust containing all of	1081
the following information:	1082

(1) A statement that the trust exists and the date the trust	1083
instrument was executed;	1084

(2) The identity of the settlor;

1085

(3) The identity and address of the currently acting trustee;

1086

(4) The powers of the trustee;

1087

(5) The revocability or irrevocability of the trust and the	1088
identity of any person holding a power to revoke the trust;	1089

(6) The authority of cotrustees to sign or otherwise	1090
authenticate and whether all or less than all are required in	1091
order to exercise powers of the trustee;	1092

(7) The trust's taxpayer identification number;

1093

(8) The manner of taking title to trust property.

1094

(B) Any trustee may sign or otherwise authenticate a	1095
certification of trust.	1096

(C) A certification of trust shall state that the trust has	1097
not been revoked, modified, or amended in any manner that would	1098
cause the representations contained in the certification of trust	1099
to be incorrect.	1100

(D) A certification of trust is not required to contain the	1101
dispositive terms of a trust.	1102

(E) A recipient of a certification of trust may require the	1103
trustee to furnish copies of those excerpts from the original	1104
trust instrument and later amendments that designate the trustee	1105
and confer upon the trustee the power to act in the pending	1106
transaction.	1107

(F) A person who acts in reliance upon a certification of	1108
trust without knowledge that the representations contained in the	1109
certification are incorrect is not liable to any person for so	1110
acting and may assume without inquiry the existence of the facts	1111
contained in the certification. Knowledge of the terms of the	1112
trust may not be inferred solely from the fact that a copy of all	1113
or part of the trust instrument is held by the person relying upon	1114
the certification.	1115

(G) A person who in good faith enters into a transaction in	1116
reliance upon a certification of trust may enforce the transaction	1117
against the trust property as if the representations contained in	1118
the certification were correct.	1119

(H) A person making a demand for the trust instrument in	1120
addition to a certification of trust or excerpts is liable for	1121
damages if the court determines that the person did not act in	1122
good faith in demanding theThis section does not affect the use	1123
or validity of a memorandum of trust instrumentunder section	1124
5301.255 of the Revised Code.	1125

(I) This section does not limit the right of a person to	1126
obtain a copy of the trust instrument in a judicial proceeding	1127
concerning the trust.	1128

Sec. 5815.35.  (A)(1) As used in this division, "fiduciary"	1129
means any person, association, or corporation, other than a	1130
trustee of a testamentary trust, an assignee or trustee for an	1131
insolvent debtor, or a guardian under Chapter 5905. of the Revised	1132
Code, that is appointed by and accountable to the probate court,	1133
and that is acting in a fiduciary capacity for another or charged	1134
with duties in relation to any property, interest, or estate for	1135
another's benefit. A fiduciary also includes an agency under	1136
contract with the department of mental retardation and	1137
developmental disabilities for the provision of protective service	1138
under sections 5123.55 to 5123.59 of the Revised Code, when	1139
appointed by and accountable to the probate court as a guardian or	1140
trustee for a mentally retarded or developmentally disabled	1141
person.	1142

(2) A fiduciary who enters a contract as fiduciary on or	1143
after March 22, 1984, is not personally liable on that contract,	1144
unless the contract otherwise specifies, if the contract is within	1145
the fiduciary's authority and the fiduciary discloses that the	1146
contract is being entered into in a fiduciary capacity. In a	1147
contract, the words "fiduciary" or "as fiduciary" or other words	1148
that indicate one's fiduciary capacity following the name or	1149
signature of a fiduciary are sufficient disclosure for purposes of	1150
this division.	1151

(B)(1) As used in this division, "partnership" includes a	1152
partnership composed of only general partners and a partnership	1153
composed of general and limited partners.	1154

(2) Subject to division (D) of this section, an executor or	1155
administrator who acquires, in a fiduciary capacity, a general	1156
partnership interest upon the death of a general partner of a	1157
partnership is not personally liable for any debt, obligation, or	1158
liability of the partnership that arises from the executor's or	1159
administrator's actions, except as provided in this division, as a	1160
general partner, or for any debt, obligation, or liability of the	1161
partnership for which the executor or administrator otherwise	1162
would be personally liable because the executor or administrator	1163
holds the general partnership interest, if the executor or	1164
administrator discloses that the general partnership interest is	1165
held by the executor or administrator in a fiduciary capacity.	1166
This immunity does not apply if an executor or administrator	1167
causes loss or injury to a person who is not a partner in the	1168
partnership by a wrongful act or omission. This immunity is not	1169
available to an executor or administrator who holds a general	1170
partnership interest in a fiduciary capacity if the spouse or any	1171
lineal descendants of the executor or administrator, or the	1172
executor or administrator other than in a fiduciary capacity,	1173
holds any interest in the partnership.	1174

A partnership certificate that is filed pursuant to Chapter	1175
1777. or another chapter of the Revised Code and that indicates	1176
that an executor or administrator holds a general partnership	1177
interest in a fiduciary capacity by the use following the name or	1178
signature of the executor or administrator of the words "executor	1179
under the will of (name of decedent)" or "administrator of the	1180
estate of (name of decedent)" or other words that indicate the	1181
executor's or administrator's fiduciary capacity constitutes a	1182
sufficient disclosure for purposes of this division.	1183

If a partnership certificate is not required to be filed	1184
pursuant to Chapter 1777. or another chapter of the Revised Code,	1185
a sufficient disclosure for purposes of this division can be made	1186
by an executor or administrator if a certificate that satisfies	1187
the following requirements is filed with the recorder of the	1188
county in which the partnership's principal office or place of	1189
business is situated and with the recorder of each county in which	1190
the partnership owns real estate:	1191

(a) The certificate shall state in full the names of all	1192
persons holding interests in the partnership and their places of	1193
residence;	1194

(b) The certificate shall be signed by all persons who are	1195
general partners in the partnership, and shall be acknowledged by	1196
a person authorized to take acknowledgements of deeds;	1197

(c) The certificate shall use the words "executor under the	1198
will of (name of decedent)" or "administrator of the estate of	1199
(name of decedent)" or other words that indicate the executor's or	1200
administrator's fiduciary capacity, following the name or	1201
signature of the executor or administrator.	1202

A contract or other written instrument delivered to a party	1203
that contracts with the partnership in which an executor or	1204
administrator holds a general partnership interest in a fiduciary	1205
capacity, whichthat indicates that the executor or administrator	1206
so holds the interest, constitutes a disclosure for purposes of	1207
this division with respect to transactions between the party and	1208
the partnership. If a disclosure has been made by a certificate in	1209
accordance with this division, a disclosure for purposes of this	1210
division with respect to such transactions exists regardless of	1211
whether a contract or other instrument indicates the executor or	1212
administrator holds the general partnership interest in a	1213
fiduciary capacity.	1214

If an executor or administrator acquires, in a fiduciary	1215
capacity, a general partnership interest, the decedent's estate is	1216
liable for debts, obligations, or liabilities of the partnership.	1217

(C) An estate that includes a general partnership interest is	1218
not liable for the debts, obligations, or liabilities of a	1219
partnership in which another estate has a general partnership	1220
interest, merely because the executor or administrator of the	1221
estates holds a general partnership interest in both of the	1222
partnerships in the executor's or administrator's fiduciary	1223
capacities.	1224

(D) Divisions (B) and (C) of this section apply to general	1225
partnership interests held by executors or administrators in their	1226
fiduciary capacities prior to and on or after the effective date	1227
of this sectionMarch 22, 1984. If an appropriate disclosure is	1228
made pursuant to division (B) of this section, the immunity	1229
acquired under that division extends only to debts, obligations,	1230
and liabilities of the partnership arising on and after the date	1231
of the disclosure and to debts, obligations, and liabilities of	1232
the partnership that arose prior to the acquisition of the general	1233
partnership interest by the executor or administrator becoming a	1234
general partner.	1235

(E) The liability limitations in this section apply to	1236
fiduciaries as partners notwithstanding the broader personal	1237
liabilities otherwise imposed by any partnership law.	1238

(F) If an estate or other fund held by a fiduciary is	1239
identified as a partner, the reference is deemed to be to, and the	1240
partner is, the current executor, administrator, or other	1241
fiduciary of the estate or other fund and their successors as	1242
executors, administrators, or other fiduciaries.	1243

Section 2.  That existing sections 2109.01, 5801.01, 5801.02,	1244
5801.06, 5801.10, 5803.02, 5803.03, 5804.02, 5804.11, 5804.13,	1245
5804.14, 5804.17, 5805.01, 5805.03, 5806.01, 5806.02, 5806.03,	1246
5806.04, 5808.13, 5808.14, 5808.16, 5810.05, 5810.11, 5810.13, and	1247
5815.35 and section 2109.022 of the Revised Code are hereby	1248
repealed.	1249