As Introduced

129th General Assembly Regular Session 2011-2012

H. B. No. 479

Representatives Hagan, C., Blessing 

Cosponsors:  Speaker Batchelder  Representatives Gardner, Grossman, Stebelton, Sears, Boose, Damschroder, Schuring, Wachtmann, Johnson, Beck, Gonzales, Terhar, Amstutz 

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A BILL

To amend sections 317.08, 1336.04, 2131.08, 2131.09,

1

2329.66, 5805.06, 5808.08, 5815.24, 5815.25, and

2

5815.36 and to enact sections 1301.401, 5815.37,

3

and 5816.01 to 5816.14 of the Revised Code to

4

adopt the Ohio Legacy Trust Act; to modify certain

5

property rights in the Ohio Trust Code; to require

6

the recording of personal property transfers with

7

the county recorder upon request; to regulate the

8

temporary conveyance of trust real property for

9

financing purposes; and to make certain changes in

10

the exempt interests law, the fraudulent transfers

11

law, the secured transactions recording law, and

12

the rule against perpetuities.

13

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

Section 1. That sections 317.08, 1336.04, 2131.08, 2131.09,	14
2329.66, 5805.06, 5808.08, 5815.24, 5815.25, and 5815.36 be	15
amended and sections 1301.401, 5815.37, 5816.01, 5816.02, 5816.03,	16
5816.04, 5816.05, 5816.06, 5816.07, 5816.08, 5816.09, 5816.10,	17
5816.11, 5816.12, 5816.13, and 5816.14 of the Revised Code be	18
enacted to read as follows:	19

Sec. 317.08. (A) Except as provided in divisions (C) and,	20
(D), and (E) of this section, the county recorder shall keep six	21
separate sets of records as follows:	22

(1) A record of deeds, in which shall be recorded all deeds	23
and other instruments of writing for the absolute and	24
unconditional sale or conveyance of lands, tenements, and	25
hereditaments; all notices as provided in sections 5301.47 to	26
5301.56 of the Revised Code; all judgments or decrees in actions	27
brought under section 5303.01 of the Revised Code; all	28
declarations and bylaws, and all amendments to declarations and	29
bylaws, as provided in Chapter 5311. of the Revised Code;	30
affidavits as provided in sections 5301.252 and 5301.56 of the	31
Revised Code; all certificates as provided in section 5311.17 of	32
the Revised Code; all articles dedicating archaeological preserves	33
accepted by the director of the Ohio historical society under	34
section 149.52 of the Revised Code; all articles dedicating nature	35
preserves accepted by the director of natural resources under	36
section 1517.05 of the Revised Code; all agreements for the	37
registration of lands as archaeological or historic landmarks	38
under section 149.51 or 149.55 of the Revised Code; all	39
conveyances of conservation easements and agricultural easements	40
under section 5301.68 of the Revised Code; all instruments	41
extinguishing agricultural easements under section 901.21 or	42
5301.691 of the Revised Code or pursuant to terms of such an	43
easement granted to a charitable organization under section	44
5301.68 of the Revised Code; all instruments or orders described	45
in division (B)(2)(b) of section 5301.56 of the Revised Code; all	46
no further action letters issued under section 122.654 or 3746.11	47
of the Revised Code; all covenants not to sue issued under section	48
3746.12 of the Revised Code, including all covenants not to sue	49
issued pursuant to section 122.654 of the Revised Code; any	50
restrictions on the use of property contained in a no further	51
action letter issued under section 122.654 of the Revised Code,	52
any restrictions on the use of property identified pursuant to	53
division (C)(3)(a) of section 3746.10 of the Revised Code, and any	54
restrictions on the use of property contained in a deed or other	55
instrument as provided in division (E) or (F) of section 3737.882	56
of the Revised Code; any easement executed or granted under	57
section 3734.22, 3734.24, 3734.25, or 3734.26 of the Revised Code;	58
any environmental covenant entered into in accordance with	59
sections 5301.80 to 5301.92 of the Revised Code; all memoranda of	60
trust, as described in division (A) of section 5301.255 of the	61
Revised Code, that describe specific real property; and all	62
agreements entered into under division (A) of section 1506.44 of	63
the Revised Code;	64

(2) A record of mortgages, in which shall be recorded all of	65
the following:	66

(a) All mortgages, including amendments, supplements,	67
modifications, and extensions of mortgages, or other instruments	68
of writing by which lands, tenements, or hereditaments are or may	69
be mortgaged or otherwise conditionally sold, conveyed, affected,	70
or encumbered;	71

(b) All executory installment contracts for the sale of land	72
executed after September 29, 1961, that by their terms are not	73
required to be fully performed by one or more of the parties to	74
them within one year of the date of the contracts;	75

(c) All options to purchase real estate, including	76
supplements, modifications, and amendments of the options, but no	77
option of that nature shall be recorded if it does not state a	78
specific day and year of expiration of its validity;	79

(d) Any tax certificate sold under section 5721.33 of the	80
Revised Code, or memorandum of it, that is presented for filing of	81
record.	82

(3) A record of powers of attorney, including all memoranda	83
of trust, as described in division (A) of section 5301.255 of the	84
Revised Code, that do not describe specific real property;	85

(4) A record of plats, in which shall be recorded all plats	86
and maps of town lots, of the subdivision of town lots, and of	87
other divisions or surveys of lands, any center line survey of a	88
highway located within the county, the plat of which shall be	89
furnished by the director of transportation or county engineer,	90
and all drawings and amendments to drawings, as provided in	91
Chapter 5311. of the Revised Code;	92

(5) A record of leases, in which shall be recorded all	93
leases, memoranda of leases, and supplements, modifications, and	94
amendments of leases and memoranda of leases;	95

(6) A record of declarations executed pursuant to section	96
2133.02 of the Revised Code and durable powers of attorney for	97
health care executed pursuant to section 1337.12 of the Revised	98
Code.	99

(B) All instruments or memoranda of instruments entitled to	100
record shall be recorded in the proper record in the order in	101
which they are presented for record. The recorder may index, keep,	102
and record in one volume unemployment compensation liens, internal	103
revenue tax liens and other liens in favor of the United States as	104
described in division (A) of section 317.09 of the Revised Code,	105
personal tax liens, mechanic's liens, agricultural product liens,	106
notices of liens, certificates of satisfaction or partial release	107
of estate tax liens, discharges of recognizances, excise and	108
franchise tax liens on corporations, broker's liens, and liens	109
provided for in sections 1513.33, 1513.37, 3752.13, 5111.022, and	110
5311.18 of the Revised Code.	111

The recording of an option to purchase real estate, including	112
any supplement, modification, and amendment of the option, under	113
this section shall serve as notice to any purchaser of an interest	114
in the real estate covered by the option only during the period of	115
the validity of the option as stated in the option.	116

(C) In lieu of keeping the six separate sets of records	117
required in divisions (A)(1) to (6) of this section and the	118
records required in divisiondivisions (D) and (E) of this	119
section, a county recorder may record all the instruments required	120
to be recorded by this section in two separate sets of record	121
books. One set shall be called the "official records" and shall	122
contain the instruments listed in divisions (A)(1), (2), (3), (5),	123
and (6) and (D) and (E) of this section. The second set of records	124
shall contain the instruments listed in division (A)(4) of this	125
section.	126

(D) Except as provided in division (C) of this section, the	127
county recorder shall keep a separate set of records containing	128
all corrupt activity lien notices filed with the recorder pursuant	129
to section 2923.36 of the Revised Code and a separate set of	130
records containing all medicaid fraud lien notices filed with the	131
recorder pursuant to section 2933.75 of the Revised Code.	132

(E) Except as provided in division (C) of this section or as	133
otherwise provided in this division, the county recorder shall	134
keep a separate set of records containing all transfers,	135
conveyances, or assignments of any type of tangible or intangible	136
personal property or any rights or interests in that property if	137
and to the extent that any person wishes to record that personal	138
property transaction. In the discretion of the county recorder,	139
the records described in this division may be maintained in or as	140
part of the county records for miscellaneous recordings and need	141
not be kept as a separate set of records if the county records for	142
those miscellaneous recordings clearly and readily identify those	143
personal property transactions.	144

Sec. 1301.401. (A) For purposes of this section, "public	145
record" means either of the following:	146

(1) Any document described or referred to in section 317.08	147
of the Revised Code;	148

(2) Any document the filing or recording of which is required	149
or allowed under any provision of Chapter 1309. of the Revised	150
Code.	151

(B) The recording with any county recorder of any document	152
described in division (A)(1) of this section or the filing or	153
recording with the secretary of state of any document described in	154
division (A)(2) of this section shall be constructive notice to	155
the whole world of the existence and contents of either document	156
as a public record and of any transaction referred to in that	157
public record, including, but not limited to, any transfer,	158
conveyance, or assignment reflected in that record.	159

(C) Any person contesting the validity or effectiveness of	160
any transaction referred to in a public record is considered to	161
have discovered that public record and any transaction referred to	162
in the record as of the time that the record was first filed with	163
the secretary of state or tendered to a county recorder for	164
recording.	165

Sec. 1336.04.  (A) A transfer made or an obligation incurred	166
by a debtor is fraudulent as to a creditor, whether the claim of	167
the creditor arose before, or within a reasonable time not to	168
exceed four years after, the transfer was made or the obligation	169
was incurred, if the debtor made the transfer or incurred the	170
obligation in either of the following ways:	171

(1) With actual and principal intent to hinder, delay, or	172
defraud any creditor of the debtor;	173

(2) Without receiving a reasonably equivalent value in	174
exchange for the transfer or obligation, and if either of the	175
following applies:	176

(a) The debtor was engaged or was about to engage in a	177
business or a transaction for which the remaining assets of the	178
debtor were unreasonably small in relation to the business or	179
transaction;	180

(b) The debtor intended to incur, or believed or reasonably	181
should have believed that hethe debtor would incur, debts beyond	182
histhe debtor's ability to pay as they became due.	183

(B) In determining actual intent under division (A)(1) of	184
this section, consideration may be given to all relevant factors,	185
including, but not limited to, the following:	186

(1) Whether the transfer or obligation was to an insider;

187

(2) Whether the debtor retained possession or control of the	188
property transferred after the transfer;	189

(3) Whether the transfer or obligation was disclosed or	190
concealed;	191

(4) Whether before the transfer was made or the obligation	192
was incurred, the debtor had been sued or threatened with suit;	193

(5) Whether the transfer was of substantially all of the	194
assets of the debtor;	195

(6) Whether the debtor absconded;

196

(7) Whether the debtor removed or concealed assets;

197

(8) Whether the value of the consideration received by the	198
debtor was reasonably equivalent to the value of the asset	199
transferred or the amount of the obligation incurred;	200

(9) Whether the debtor was insolvent or became insolvent	201
shortly after the transfer was made or the obligation was	202
incurred;	203

(10) Whether the transfer occurred shortly before or shortly	204
after a substantial debt was incurred;	205

(11) Whether the debtor transferred the essential assets of	206
the business to a lienholder who transferred the assets to an	207
insider of the debtor.	208

Sec. 2131.08.  (A) Subject to sections 1746.14, 1747.09, and	209
2131.09 of the Revised Code, no interest in real or personal	210
property shall be good unless it must vest, if at all, not later	211
than twenty-one years after a life or lives in being at the	212
creation of the interest. All estates given in tail, by deed or	213
will, in real property lying within this state shall be and remain	214
an absolute estate in fee simple to the issue of the first donee	215
in tail. It is the intention by the adoption of this section to	216
make effective in this state what is generally known as the common	217
law rule against perpetuities, except as set forth in divisions	218
(B) and (C) of this section.	219

(B) For the purposes of this section and subject to sections	220
1746.14, 1747.09, and 2131.09 of the Revised Code, the time of the	221
creation of an interest in real or personal property subject to a	222
power reserved by the grantor to revoke or terminate the interest	223
shall be the time at which the reserved power expires by reason of	224
the death of the grantor, by release of the power, or otherwise.	225

(C) Any interest in real or personal property that would	226
violate the rule against perpetuities, under division (A) of this	227
section, shall be reformed, within the limits of the rule, to	228
approximate most closely the intention of the creator of the	229
interest. In determining whether an interest would violate the	230
rule and in reforming an interest, the period of perpetuities	231
shall be measured by actual rather than possible events.	232

(D) For purposes of this section and subject to sections	233
1746.14, 1747.09, and 2131.09 of the Revised Code, the following	234
apply:	235

(1) The time of the creation of an interest in real or	236
personal property resulting from the exercise of a general power	237
of appointment exercisable in a nonfiduciary capacity by deed,	238
whether or not also exercisable by will, shall be the time at	239
which that power of appointment is exercised.	240

(2) The time of the creation of an interest in real or	241
personal property resulting from the termination, without	242
exercise, of a general power of appointment exercisable in a	243
nonfiduciary capacity by deed, whether or not also exercisable by	244
will, shall be the time at which that power of appointment	245
terminates by reason of the death of the power holder, by release	246
of the power, or otherwise.	247

(E) Divisions (B) and (C) of this section shall be effective	248
with respect to interests in real or personal property created by	249
wills of decedents dying after December 31, 1967, with respect to	250
interests in real or personal property created by inter vivos	251
instruments executed after December 31, 1967, and with respect to	252
interests in real or personal property created by inter vivos	253
instruments executed on or before December 31, 1967, that by	254
reason of division (B) of this section will be treated as	255
interests created after December 31, 1967. Divisions (B) and (C)	256
of this section shall be effective with respect to interests in	257
real or personal property created by the exercise of a power of	258
appointment if divisions (B) and (C) of this section apply to the	259
instrument that exercises the power, whether or not divisions (B)	260
and (C) of this section apply to the instrument that creates the	261
power.	262

(F) Divisions (D) and (G) of this section are intended to be	263
a statement of the common law of this state and shall be effective	264
with respect to interests in real or personal property whenever	265
created.	266

(G) For purposes of this section:

267

(1) "General power of appointment" has the same meaning as in	268
section 2131.09 of the Revised Code.	269

(2) "Exercisable by deed" in reference to a power of	270
appointment means a power that can be exercised during the power	271
holder's lifetime by an instrument that takes effect immediately.	272

Sec. 2131.09.  (A) A trust of real or personal property	273
created by an employer as part of a stock bonus plan, pension	274
plan, disability or death benefit plan, or profit-sharing plan,	275
for the benefit of some or all of the employees, to which	276
contributions are made by the employer or employees, or both, for	277
the purpose of distributing to the employees or their	278
beneficiaries the earnings or the principal, or both earnings and	279
principal, of the fund so held in trust is not invalid as	280
violating the rule against perpetuities, any other existing law	281
against perpetuities, or any law restricting or limiting the	282
duration of trusts; but the trust may continue for the time that	283
is necessary to accomplish the purposes for which it was created.	284

The income arising from any trust within the classifications	285
mentioned in this division may be accumulated in accordance with	286
the terms of the trust for as long a time as is necessary to	287
accomplish the purposes for which the trust was created,	288
notwithstanding any law limiting the period during which trust	289
income may be accumulated.	290

No rule of law against perpetuities or the suspension of the	291
power of alienation of the title to property invalidates any trust	292
within the classifications mentioned in this division unless the	293
trust is terminated by decree of a court in a suit instituted	294
within two years after June 25, 1951.	295

(B)(1) No rule of law against perpetuities or suspension of	296
the power of alienation of the title to property, any other	297
existing law against perpetuities, or any law restricting or	298
limiting the duration of trusts shall apply with respect to any	299
interest in real or personal property held in trust if theboth of	300
the following apply:	301

(a) The instrument creating the trust specifically states	302
that the rule against perpetuities or the provisions of division	303
(B)(A) of section 2131.08 of the Revised Code shall not apply to	304
the trust and if either the.	305

(b) The trustee of the trust has unlimited power to sell all	306
trust assets, or if one or more persons, one of whom may be the	307
trustee, hashave the unlimited power to direct the trustee or to	308
approve the trustee's decision, either to sell all trust assets or	309
to terminate the entire trust.	310

(2) Division (B)(1) of this section shall apply to the	311
interpretation of a testamentary or inter vivos trust instrument	312
that creates an interest in real or personal property in relation	313
to which one or more of the following conditions appliesapply:	314

(a) The instrument creating the testamentary or inter vivos	315
trust is executed in this state.	316

(b) The sole trustee or one of the trustees is domiciled in	317
this state.	318

(c) The testamentary or inter vivos trust is administered in	319
this state or the situs of a substantial portion of the assets	320
subject to the testamentary portion of the testamentary or inter	321
vivos trust is in this state, even though some part or all of	322
those assets are physically deposited for safekeeping in a state	323
other than this state.	324

(d) The instrument creating the testamentary or inter vivos	325
trust states that the law of this state is to apply.	326

(3) DivisionSubject to division (C) of this section,	327
division (B) of this section shall be effective with respect to	328
all of the following:	329

(a) An interest in real or personal property in trust created	330
by wills of decedentsunder the terms of a will of a decedent	331
dying on or after the effective date of this amendmentMarch 22,	332
1999;	333

(b) An interest in real or personal property created byunder	334
the terms of an inter vivos or testamentary trust instrument	335
executed on or after the effective date of this amendmentMarch	336
22, 1999;	337

(c) An interest in real or personal property in trust created	338
by the exercise of a general power of appointment on or after the	339
effective date of this amendmentMarch 22, 1999;	340

(d) An interest in real or personal property in trust created	341
by the exercise of a nongeneral power of appointment over any	342
portion of a trust that meets the requirements of division (B) of	343
this section, but only if the date of creation of that nongeneral	344
power of appointment is on or after the effective date of this	345
section.	346

(4) Division (B) of this section shall not apply to the	347
exercise of a power of appointment other than a general power of	348
appointment.	349

(C) The exercise of a nongeneral power of appointment granted	350
over any portion of a trust to which the rule against perpetuities	351
does not apply because the terms of the trust meet the	352
requirements of division (B) of this section shall nevertheless be	353
subject to section 2131.08 of the Revised Code, except that	354
interests created pursuant to the exercise of a nongeneral power	355
of appointment that has a date of creation on or after the	356
effective date of this section shall be required to vest not later	357
than one thousand years after the date of creation of that power.	358

(D) For purposes of this section, the instrument creating a	359
trust subject to a power reserved by the grantor to amend, revoke,	360
or terminate the trust shall include the original instrument	361
establishing the trust and all amendments to the instrument made	362
prior to the time at which the reserved power expires by reason of	363
the death of the grantor, by release of the power, or otherwise.	364

(E) The amendment of division (B)(1) of this section and	365
divisions (D) and (F) of this section are intended to clarify the	366
provisions of this section as originally enacted and apply to	367
trust instruments that are in existence prior to, on, or after the	368
effective date of this section.	369

(F) For purposes of this section, "general:

370

(1) "General power of appointment" means a power that is	371
exercisable in favor of the individual possessing the power, the	372
person'sindividual's estate, the person'sindividual's creditors,	373
or the creditors of the person'sindividual's estate other than	374
either of the following:	375

(a) A power that is limited by an ascertainable standard as	376
defined in section 5801.01 of the Revised Code;	377

(b) A power of withdrawal held by an individual, but only to	378
the extent that it does not exceed the amount specified in section	379
2041(b)(2) or 2514(e) of the "Internal Revenue Code of 1986," 100	380
Stat. 2085, 26 U.S.C. 1 et seq., as amended.	381

(2) "Nongeneral power of appointment" means any power of	382
appointment that is not a general power of appointment.	383

(3) The "date of creation" of a nongeneral power of	384
appointment created by the exercise of one or more powers of	385
appointment, except by the exercise of a general power of	386
appointment exercisable by deed, shall be the date of creation of	387
the first of those powers of appointment to be exercised.	388

(4) "Exercisable by deed" has the same meaning as in section	389
2131.08 of the Revised Code.	390

Sec. 2329.66.  (A) Every person who is domiciled in this	391
state may hold property exempt from execution, garnishment,	392
attachment, or sale to satisfy a judgment or order, as follows:	393

(1)(a) In the case of a judgment or order regarding money	394
owed for health care services rendered or health care supplies	395
provided to the person or a dependent of the person, one parcel or	396
item of real or personal property that the person or a dependent	397
of the person uses as a residence. Division (A)(1)(a) of this	398
section does not preclude, affect, or invalidate the creation	399
under this chapter of a judgment lien upon the exempted property	400
but only delays the enforcement of the lien until the property is	401
sold or otherwise transferred by the owner or in accordance with	402
other applicable laws to a person or entity other than the	403
surviving spouse or surviving minor children of the judgment	404
debtor. Every person who is domiciled in this state may hold	405
exempt from a judgment lien created pursuant to division (A)(1)(a)	406
of this section the person's interest, not to exceed twenty	407
thousand two hundred dollars, in the exempted property.	408

(b) In the case of all other judgments and orders, theThe	409
person's interest, not to exceed twenty thousand two hundred	410
dollars, in one parcel or item of real or personal property that	411
the person or a dependent of the person uses as a residence and in	412
any real and personal property that the person has devoted to	413
agricultural use. For purposes of division (A)(1) of this section,	414
"parcel" means a tract of improved real property as identified on	415
the records of the auditor of the county in which the real	416
property is located.	417

(2) The person's interest, not to exceed three thousand two	418
hundred twenty-five dollars, in one motor vehicle;	419

(3) The person's interest, not to exceed four hundred	420
dollars, in cash on hand, money due and payable, money to become	421
due within ninety days, tax refunds, and money on deposit with a	422
bank, savings and loan association, credit union, public utility,	423
landlord, or other person, other than personal earnings.	424

(4)(a) The person's interest, not to exceed five hundred	425
twenty-five dollars in any particular item or ten thousand seven	426
hundred seventy-five dollars in aggregate value, in household	427
furnishings, household goods, wearing apparel, appliances, books,	428
animals, crops, musical instruments, firearms, and hunting and	429
fishing equipment that are held primarily for the personal,	430
family, or household use of the person;	431

(b) The person's aggregate interest in one or more items of	432
jewelry, not to exceed one thousand three hundred fifty dollars,	433
held primarily for the personal, family, or household use of the	434
person or any of the person's dependents.	435

(5) The person's interest, not to exceed an aggregate of two	436
thousand twenty-five dollars, in all implements, professional	437
books, or tools of the person's profession, trade, or business,	438
including agriculture;	439

(6)(a) The person's interest in a beneficiary fund set apart,	440
appropriated, or paid by a benevolent association or society, as	441
exempted by section 2329.63 of the Revised Code;	442

(b) The person's interest in contracts of life or endowment	443
insurance or annuities, as exempted by section 3911.10 of the	444
Revised Code;	445

(c) The person's interest in a policy of group insurance or	446
the proceeds of a policy of group insurance, as exempted by	447
section 3917.05 of the Revised Code;	448

(d) The person's interest in money, benefits, charity,	449
relief, or aid to be paid, provided, or rendered by a fraternal	450
benefit society, as exempted by section 3921.18 of the Revised	451
Code;	452

(e) The person's interest in the portion of benefits under	453
policies of sickness and accident insurance and in lump sum	454
payments for dismemberment and other losses insured under those	455
policies, as exempted by section 3923.19 of the Revised Code.	456

(7) The person's professionally prescribed or medically	457
necessary health aids;	458

(8) The person's interest in a burial lot, including, but not	459
limited to, exemptions under section 517.09 or 1721.07 of the	460
Revised Code;	461

(9) The person's interest in the following:

462

(a) Moneys paid or payable for living maintenance or rights,	463
as exempted by section 3304.19 of the Revised Code;	464

(b) Workers' compensation, as exempted by section 4123.67 of	465
the Revised Code;	466

(c) Unemployment compensation benefits, as exempted by	467
section 4141.32 of the Revised Code;	468

(d) Cash assistance payments under the Ohio works first	469
program, as exempted by section 5107.75 of the Revised Code;	470

(e) Benefits and services under the prevention, retention,	471
and contingency program, as exempted by section 5108.08 of the	472
Revised Code;	473

(f) Disability financial assistance payments, as exempted by	474
section 5115.06 of the Revised Code;	475

(g) Payments under section 24 or 32 of the "Internal Revenue	476
Code of 1986," 100 Stat. 2085, 26 U.S.C. 1, as amended.	477

(10)(a) Except in cases in which the person was convicted of	478
or pleaded guilty to a violation of section 2921.41 of the Revised	479
Code and in which an order for the withholding of restitution from	480
payments was issued under division (C)(2)(b) of that section, in	481
cases in which an order for withholding was issued under section	482
2907.15 of the Revised Code, in cases in which an order for	483
forfeiture was issued under division (A) or (B) of section	484
2929.192 of the Revised Code, and in cases in which an order was	485
issued under section 2929.193 of the Revised Code, and only to the	486
extent provided in the order, and except as provided in sections	487
3105.171, 3105.63, 3119.80, 3119.81, 3121.02, 3121.03, and 3123.06	488
of the Revised Code, the person's rightrights to or interests in	489
a pension, benefit, annuity, retirement allowance, or accumulated	490
contributions, the person's rightrights to or interests in a	491
participant account in any deferred compensation program offered	492
by the Ohio public employees deferred compensation board, a	493
government unit, or a municipal corporation, or the person's other	494
accrued or accruing rights or interests, as exempted by section	495
145.56, 146.13, 148.09, 742.47, 3307.41, 3309.66, or 5505.22 of	496
the Revised Code, and the person's rightrights to or interests in	497
benefits from the Ohio public safety officers death benefit fund;	498

(b) Except as provided in sections 3119.80, 3119.81, 3121.02,	499
3121.03, and 3123.06 of the Revised Code, the person's right	500
rights to receive or interests in receiving a payment or other	501
benefits under any pension, annuity, or similar plan or contract,	502
not including a payment or benefit from a stock bonus or	503
profit-sharing plan or a payment included in division (A)(6)(b) or	504
(10)(a) of this section, on account of illness, disability, death,	505
age, or length of service, to the extent reasonably necessary for	506
the support of the person and any of the person's dependents,	507
except if all the following apply:	508

(i) The plan or contract was established by or under the	509
auspices of an insider that employed the person at the time the	510
person's rights or interests under the plan or contract arose.	511

(ii) The payment is on account of age or length of service.

512

(iii) The plan or contract is not qualified under the	513
"Internal Revenue Code of 1986," 100 Stat. 2085, 26 U.S.C. 1, as	514
amended.	515

(c) Except for any portion of the assets that were deposited	516
for the principal purpose of evading the payment of any debt and	517
except as provided in sections 3119.80, 3119.81, 3121.02, 3121.03,	518
and 3123.06 of the Revised Code, the person's rightrights or	519
interests in the assets held in, or to directly or indirectly	520
receive any payment or benefit under, any individual retirement	521
account, individual retirement annuity, "Roth IRA," "529 plan," or	522
education individual retirement account that provides payments or	523
benefits by reason of illness, disability, death, retirement, or	524
age or provides payments or benefits for purposes of education, to	525
the extent that the assets, payments, or benefits described in	526
division (A)(10)(c) of this section are attributable to or derived	527
from any of the following or from any earnings, dividends,	528
interest, appreciation, or gains on any of the following:	529

(i) Contributions of the person that were less than or equal	530
to the applicable limits on deductible contributions to an	531
individual retirement account or individual retirement annuity in	532
the year that the contributions were made, whether or not the	533
person was eligible to deduct the contributions on the person's	534
federal tax return for the year in which the contributions were	535
made;	536

(ii) Contributions of the person that were less than or equal	537
to the applicable limits on contributions to a Roth IRA or	538
education individual retirement account in the year that the	539
contributions were made;	540

(iii) Contributions of the person that are within the	541
applicable limits on rollover contributions under subsections 219,	542
402(c), 403(a)(4), 403(b)(8), 408(b), 408(d)(3), 408A(c)(3)(B),	543
408A(d)(3), and 530(d)(5) of the "Internal Revenue Code of 1986,"	544
100 Stat. 2085, 26 U.S.C.A. 1, as amended;	545

(iv) Contributions by any person into any plan, fund, or	546
account that is formed, created, or administered pursuant to, or	547
is otherwise subject to, section 529 of the "Internal Revenue Code	548
of 1986," 100 Stat. 2085, 26 U.S.C. 1, as amended.	549

(d) Except for any portion of the assets that were deposited	550
for the principal purpose of evading the payment of any debt and	551
except as provided in sections 3119.80, 3119.81, 3121.02, 3121.03,	552
and 3123.06 of the Revised Code, the person's rightrights or	553
interests in the assets held in, or to receive any payment under,	554
any Keogh or "H.R. 10" plan that provides benefits by reason of	555
illness, disability, death, retirement, or age, to the extent	556
reasonably necessary for the support of the person and any of the	557
person's dependents.	558

(e) The person's rights to or interests in any assets held	559
in, or to directly or indirectly receive any payment or benefit	560
under, any individual retirement account, individual retirement	561
annuity, "Roth IRA," "529 plan," or education individual	562
retirement account that a decedent, upon or by reason of the	563
decedent's death, directly or indirectly left to or for the	564
benefit of the person, either outright or in trust or otherwise,	565
including, but not limited to, any of those rights or interests in	566
assets or to receive payments or benefits that were transferred,	567
conveyed, or otherwise transmitted by the decedent by means of a	568
will, trust, exercise of a power of appointment, beneficiary	569
designation, transfer or payment on death designation, or any	570
other method or procedure.	571

(f) The exemptions under divisions (A)(10)(a) to (e) of this	572
section also shall apply or otherwise be available to an alternate	573
payee under a qualified domestic relations order (QDRO) or other	574
similar court order.	575

(g) A person's interest in any plan, program, instrument, or	576
device described in divisions (A)(10)(a) to (e) of this section	577
shall be considered an exempt interest even if the plan, program,	578
instrument, or device in question, due to an error made in good	579
faith, failed to satisfy any criteria applicable to that plan,	580
program, instrument, or device under the "Internal Revenue Code of	581
1986," 100 Stat. 2085, 26 U.S.C. 1, as amended.	582

(11) The person's right to receive spousal support, child	583
support, an allowance, or other maintenance to the extent	584
reasonably necessary for the support of the person and any of the	585
person's dependents;	586

(12) The person's right to receive, or moneys received during	587
the preceding twelve calendar months from, any of the following:	588

(a) An award of reparations under sections 2743.51 to 2743.72	589
of the Revised Code, to the extent exempted by division (D) of	590
section 2743.66 of the Revised Code;	591

(b) A payment on account of the wrongful death of an	592
individual of whom the person was a dependent on the date of the	593
individual's death, to the extent reasonably necessary for the	594
support of the person and any of the person's dependents;	595

(c) Except in cases in which the person who receives the	596
payment is an inmate, as defined in section 2969.21 of the Revised	597
Code, and in which the payment resulted from a civil action or	598
appeal against a government entity or employee, as defined in	599
section 2969.21 of the Revised Code, a payment, not to exceed	600
twenty thousand two hundred dollars, on account of personal bodily	601
injury, not including pain and suffering or compensation for	602
actual pecuniary loss, of the person or an individual for whom the	603
person is a dependent;	604

(d) A payment in compensation for loss of future earnings of	605
the person or an individual of whom the person is or was a	606
dependent, to the extent reasonably necessary for the support of	607
the debtor and any of the debtor's dependents.	608

(13) Except as provided in sections 3119.80, 3119.81,	609
3121.02, 3121.03, and 3123.06 of the Revised Code, personal	610
earnings of the person owed to the person for services in an	611
amount equal to the greater of the following amounts:	612

(a) If paid weekly, thirty times the current federal minimum	613
hourly wage; if paid biweekly, sixty times the current federal	614
minimum hourly wage; if paid semimonthly, sixty-five times the	615
current federal minimum hourly wage; or if paid monthly, one	616
hundred thirty times the current federal minimum hourly wage that	617
is in effect at the time the earnings are payable, as prescribed	618
by the "Fair Labor Standards Act of 1938," 52 Stat. 1060, 29	619
U.S.C. 206(a)(1), as amended;	620

(b) Seventy-five per cent of the disposable earnings owed to	621
the person.	622

(14) The person's right in specific partnership property, as	623
exempted by division (B)(3) of section 1775.24 of the Revised Code	624
or the person's rights in a partnership pursuant to section	625
1776.50 of the Revised Code, except as otherwise set forth in	626
section 1776.50 of the Revised Code;	627

(15) A seal and official register of a notary public, as	628
exempted by section 147.04 of the Revised Code;	629

(16) The person's interest in a tuition unit or a payment	630
under section 3334.09 of the Revised Code pursuant to a tuition	631
payment contract, as exempted by section 3334.15 of the Revised	632
Code;	633

(17) Any other property that is specifically exempted from	634
execution, attachment, garnishment, or sale by federal statutes	635
other than the "Bankruptcy Reform Act of 1978," 92 Stat. 2549, 11	636
U.S.C.A. 101, as amended;	637

(18) The person's aggregate interest in any property, not to	638
exceed one thousand seventy-five dollars, except that division	639
(A)(18) of this section applies only in bankruptcy proceedings.	640

(B) On April 1, 2010, and on the first day of April in each	641
third calendar year after 2010, the Ohio judicial conference shall	642
adjust each dollar amount set forth in this section to reflect the	643
changeany increase in the consumer price index for all urban	644
consumers, as published by the United States department of labor,	645
or, if that index is no longer published, a generally available	646
comparable index, for the three-year period ending on the	647
thirty-first day of December of the preceding year. Any	648
adjustments required by this division shall be rounded to the	649
nearest twenty-five dollars.	650

The Ohio judicial conference shall prepare a memorandum	651
specifying the adjusted dollar amounts. The judicial conference	652
shall transmit the memorandum to the director of the legislative	653
service commission, and the director shall publish the memorandum	654
in the register of Ohio. (Publication of the memorandum in the	655
register of Ohio shall continue until the next memorandum	656
specifying an adjustment is so published.) The judicial conference	657
also may publish the memorandum in any other manner it concludes	658
will be reasonably likely to inform persons who are affected by	659
its adjustment of the dollar amounts.	660

(C) As used in this section:

661

(1) "Disposable earnings" means net earnings after the	662
garnishee has made deductions required by law, excluding the	663
deductions ordered pursuant to section 3119.80, 3119.81, 3121.02,	664
3121.03, or 3123.06 of the Revised Code.	665

(2) "Insider" means:

666

(a) If the person who claims an exemption is an individual, a	667
relative of the individual, a relative of a general partner of the	668
individual, a partnership in which the individual is a general	669
partner, a general partner of the individual, or a corporation of	670
which the individual is a director, officer, or in control;	671

(b) If the person who claims an exemption is a corporation, a	672
director or officer of the corporation; a person in control of the	673
corporation; a partnership in which the corporation is a general	674
partner; a general partner of the corporation; or a relative of a	675
general partner, director, officer, or person in control of the	676
corporation;	677

(c) If the person who claims an exemption is a partnership, a	678
general partner in the partnership; a general partner of the	679
partnership; a person in control of the partnership; a partnership	680
in which the partnership is a general partner; or a relative in, a	681
general partner of, or a person in control of the partnership;	682

(d) An entity or person to which or whom any of the following	683
applies:	684

(i) The entity directly or indirectly owns, controls, or	685
holds with power to vote, twenty per cent or more of the	686
outstanding voting securities of the person who claims an	687
exemption, unless the entity holds the securities in a fiduciary	688
or agency capacity without sole discretionary power to vote the	689
securities or holds the securities solely to secure to debt and	690
the entity has not in fact exercised the power to vote.	691

(ii) The entity is a corporation, twenty per cent or more of	692
whose outstanding voting securities are directly or indirectly	693
owned, controlled, or held with power to vote, by the person who	694
claims an exemption or by an entity to which division (C)(2)(d)(i)	695
of this section applies.	696

(iii) A person whose business is operated under a lease or	697
operating agreement by the person who claims an exemption, or a	698
person substantially all of whose business is operated under an	699
operating agreement with the person who claims an exemption.	700

(iv) The entity operates the business or all or substantially	701
all of the property of the person who claims an exemption under a	702
lease or operating agreement.	703

(e) An insider, as otherwise defined in this section, of a	704
person or entity to which division (C)(2)(d)(i), (ii), (iii), or	705
(iv) of this section applies, as if the person or entity were a	706
person who claims an exemption;	707

(f) A managing agent of the person who claims an exemption.

708

(3) "Participant account" has the same meaning as in section	709
148.01 of the Revised Code.	710

(4) "Government unit" has the same meaning as in section	711
148.06 of the Revised Code.	712

(D) For purposes of this section, "interest" shall be	713
determined as follows:	714

(1) In bankruptcy proceedings, as of the date a petition is	715
filed with the bankruptcy court commencing a case under Title 11	716
of the United States Code;	717

(2) In all cases other than bankruptcy proceedings, as of the	718
date of an appraisal, if necessary under section 2329.68 of the	719
Revised Code, or the issuance of a writ of execution.	720

An interest, as determined under division (D)(1) or (2) of	721
this section, shall not include the amount of any lien otherwise	722
valid pursuant to section 2329.661 of the Revised Code.	723

Sec. 5805.06.  (A) Whether or not the terms of a trust	724
contain a spendthrift provision, all of the following apply:	725

(1) During the lifetime of the settlor, the property of a	726
revocable trust is subject to claims of the settlor's creditors.	727

(2) WithExcept to the extent that a trust is established	728
pursuant to, or otherwise is wholly or partially governed by or	729
subject to Chapter 5816. of the Revised Code, with respect to an	730
irrevocable trust, a creditor or assignee of the settlor may reach	731
the maximum amount that can be distributed to or for the settlor's	732
benefit. If aan irrevocable trust has more than one settlor, the	733
amount distributable to or for a settlor's benefit that the	734
creditor or assignee of a particular settlor may reach may not	735
exceed thethat settlor's interest in the portion of the trust	736
attributable to that settlor's contribution. The right of a	737
creditor or assignee to reach a settlor's interest in an	738
irrevocable trust shall be subject to Chapter 5816. of the Revised	739
Code to the extent that that chapter applies to that trust.	740

(3) With respect to a trust described in 42 U.S.C. section	741
1396p(d)(4)(A) or (C), the court may limit the award of a	742
settlor's creditor under division (A)(1) or (2) of this section to	743
the relief that is appropriate under the circumstances,	744
considering among any other factors determined appropriate by the	745
court, the supplemental needs of the beneficiary.	746

(B) For purposes of this section, all of the following apply:

747

(1) The holder of a power of withdrawal is treated in the	748
same manner as the settlor of a revocable trust to the extent of	749
the property subject to the power during the period the power may	750
be exercised.	751

(2) Upon the lapse, release, or waiver of the power of	752
withdrawal, the holder is treated as the settlor of the trust only	753
to the extent the value of the property affected by the lapse,	754
release, or waiver exceeds the greatest of the following amounts:	755

(a) The amount specified in section 2041(b)(2) or 2514(e) of	756
the Internal Revenue Code;	757

(b) If the donor of the property subject to the holder's	758
power of withdrawal is not married at the time of the transfer of	759
the property to the trust, the amount specified in section 2503(b)	760
of the Internal Revenue Code;	761

(c) If the donor of the property subject to the holder's	762
power of withdrawal is married at the time of the transfer of the	763
property to the trust, twice the amount specified in section	764
2503(b) of the Internal Revenue Code.	765

(3) None of the following shall be considered an amount that	766
can be distributed to or for the benefit of the settlor:	767

(a) Trust property that could be or is distributed to or for	768
the benefit of the settlor only as a result of the exercise of a	769
power of appointment held in a nonfiduciary capacity by any person	770
other than the settlor;	771

(b) Trust property that could be or is distributed to or for	772
the benefit of the settlor of a trust pursuant to the power of the	773
trustee to make distributions or pursuant to the power of another	774
in a fiduciary capacity to direct distributions, if and to the	775
extent that the distributions are or could be made from trust	776
property the value of which was included in the gross estate of	777
the settlor's spouse for federal estate tax purposes under section	778
2041 or 2044 of the Internal Revenue Code or that was treated as a	779
transfer by the settlor's spouse under section 2514 or 2519 of the	780
Internal Revenue Code.	781

(4) In connection with any tax owed or paid by the settlor in	782
connection with any tax levied on any trust income or principal,	783
no trust property shall be considered an amount that can be	784
distributed to or for the benefit of the settlor solely because	785
trust property, whether pursuant to the exercise of a	786
discretionary power by any person other than the settlor or	787
pursuant to the terms of the trust instrument, could or must be	788
paid to a taxing authority, is paid to a taxing authority, or	789
could or must be distributed to or for the benefit of the settlor	790
to reimburse the settlor for paying that tax.	791

Sec. 5808.08.  (A) While a trust is revocable, the trustee	792
may follow a direction of the settlor that is contrary to the	793
terms of the trust.	794

(B) As provided in section 5815.25 of the Revised Code, a	795
trustee is not liable for losses resulting from certain actions or	796
failures to act when other persons are granted certain powers with	797
respect to the administration of the trust.	798

(C) The terms of a trust may confer upon a trustee or other	799
person a power to direct the modification or termination of the	800
trust.	801

(D) AExcept to the extent otherwise provided by the terms of	802
a trust, a person other than a beneficiary who holds a power to	803
direct, including, but not limited to, a power to direct the	804
modification or termination of a trust, is presumptively a	805
fiduciary who, as a fiduciary, is required to act in good faith	806
with regard to the purposes of the trust and the interests of the	807
beneficiaries. The holder of a power to direct is liable for any	808
loss that results from breach of a fiduciary duty.	809

Sec. 5815.24.  (A) As used in this section, "fiduciary" means	810
a trustee under any expressed, implied, resulting, or constructive	811
trust; an executor, administrator, public administrator,	812
committee, guardian, conservator, curator, receiver, trustee in	813
bankruptcy, or assignee for the benefit of creditors; a partner,	814
agent, officer of a public or private corporation, or public	815
officer; or any other person acting in a fiduciary capacity for	816
any person, trust, or estate.	817

(B) A fiduciary, or a custodian, who is a transferee of real	818
or personal property that is held by a fiduciary other than the	819
person or entity serving as the transferee, is not required to	820
inquire into any act, or audit any account, of the transferor	821
fiduciary, unless the transferee is specifically directed to do so	822
in the instrument governing the transferee or unless the	823
transferee has actual knowledge of conduct of the transferor that	824
would constitute a breach of the transferor's fiduciary	825
responsibilities.	826

(C) If a trustee is authorized or directed in a trust	827
instrument to pay or advance all or any part of the trust property	828
to the personal representative of a decedent's estate for the	829
payment of the decedent's legal obligations, death taxes,	830
bequests, or expenses of administration, the trustee is not liable	831
for the application of the trust property paid or advanced to the	832
personal representative and is not liable for any act or omission	833
of the personal representative with respect to the trust property,	834
unless the trustee has actual knowledge, prior to the payment or	835
advancement of the trust property, that the personal	836
representative does not intend to use the trust property for such	837
purposes.	838

(D) Regardless of whether a beneficiary is subject to the	839
claims of any creditor, a trustee may pay any expense incurred by	840
a beneficiary to the extent that payment is permitted by the	841
instrument governing the trust, and the trustee may make those	842
payments even if the payments exhaust the income and principal of	843
the trust. A trustee is not liable to any creditor of a	844
beneficiary for paying the expenses of a beneficiary as allowed by	845
this division.	846

Sec. 5815.25.  (A) As used in this section, "fiduciary" means	847
a trustee under any testamentary, inter vivos, or other trust, an	848
executor or administrator, or any other person who is acting in a	849
fiduciary capacity for any person, trust, or estate.	850

(B) WhenIf an instrument or other applicable written	851
agreement describes, appoints, or directs a fiduciary to handle	852
only the administrative duties and responsibilities of a trust,	853
that administrative fiduciary shall not have any duties,	854
responsibilities, or liabilities to the trust beneficiaries or to	855
other persons interested in a trust except for those	856
administrative duties and responsibilities specifically described	857
in the instrument or written agreement. The administrative duties	858
and responsibilities of a trust under this division may include	859
any of the following:	860

(1) Opening and maintaining bank, brokerage, financial, or	861
other custodial accounts to receive trust income or contributions	862
and from which trust expenditures, bills, and distributions may be	863
disbursed;	864

(2) Maintaining and handling trust records, reports,	865
correspondence, or communications;	866

(3) Maintaining an office for trust business;

867

(4) Filing any trust tax returns;

868

(5) Employing agents in connection with the fiduciary's	869
administrative duties;	870

(6) Taking custody of or storing trust property;

871

(7) Any other similar administrative duties for the trust.

872

(C) If an instrument under which a fiduciary acts reserves to	873
the grantor, or vests in an advisory or investment committee or in	874
one or more other persons, including one or more fiduciaries, to	875
the exclusion of the fiduciary or of one or more of several	876
fiduciaries, any power, including, but not limited to, the	877
authority to direct the acquisition, disposition, or retention of	878
any investment or the power to authorize any act that an excluded	879
fiduciary may propose, any excluded fiduciary is not liable,	880
either individually or as a fiduciary, for either of the	881
following:	882

(1) Any loss that results from compliance with an authorized	883
direction of the grantor, committee, person, or persons;	884

(2) Any loss that results from a failure to take any action	885
proposed by an excluded fiduciary that requires a prior	886
authorization of the grantor, committee, person, or persons if	887
that excluded fiduciary timely sought but failed to obtain that	888
authorization.	889

(C)(D) Any administrative fiduciary as described in division	890
(B) of this section or any excluded fiduciary as described in	891
division (B)(C) of this section is relieved from any obligation to	892
perform investment reviews and make recommendations with respect	893
to any investments to the extent the grantor, an advisory or	894
investment committee, or one or more other persons have authority	895
to direct the acquisition, disposition, or retention of any	896
investment.	897

(D)(E) This section does not apply to the extent that the	898
instrument under which an administrative fiduciary as described in	899
division (B) of this section or an excluded fiduciary as described	900
in division (B)(C) of this section acts contains provisions that	901
are inconsistent with this section.	902

Sec. 5815.36.  (A) As used in this section:

903

(1) "Disclaimant" means any person, any guardian or personal	904
representative of a person or estate of a person, or any	905
attorney-in-fact or agent of a person having a general or specific	906
authority to act granted in a written instrument, who is any of	907
the following:	908

(a) With respect to testamentary instruments and intestate	909
succession, an heir, next of kin, devisee, legatee, donee, person	910
succeeding to a disclaimed interest, surviving joint tenant,	911
surviving tenant by the entireties, surviving tenant of a tenancy	912
with a right of survivorship, beneficiary under a testamentary	913
instrument, or person designated to take pursuant to a power of	914
appointment exercised by a testamentary instrument;	915

(b) With respect to nontestamentary instruments, a grantee,	916
donee, person succeeding to a disclaimed interest, surviving joint	917
tenant, surviving tenant by the entireties, surviving tenant of a	918
tenancy with a right of survivorship, beneficiary under a	919
nontestamentary instrument, or person designated to take pursuant	920
to a power of appointment exercised by a nontestamentary	921
instrument;	922

(c) With respect to fiduciary rights, privileges, powers, and	923
immunities, a fiduciary under a testamentary or nontestamentary	924
instrument. Division (A)(1)(c) of this section does not authorize	925
a fiduciary who disclaims fiduciary rights, privileges, powers,	926
and immunities to cause the rights of any beneficiary to be	927
disclaimed unless the instrument creating the fiduciary	928
relationship authorizes the fiduciary to make such a disclaimer.	929

(d) Any person entitled to take an interest in property upon	930
the death of a person or upon the occurrence of any other event.	931

(2) "Personal representative" includes any fiduciary as	932
defined in section 2109.01 of the Revised Code and any executor,	933
trustee, guardian, or other person or entity having a fiduciary	934
relationship with regard to any interest in property passing to	935
the fiduciary, executor, trustee, guardian, or other person or	936
entity by reason of a disclaimant's death.	937

(3) "Property" means all forms of property, real and	938
personal, tangible and intangible.	939

(B)(1) A disclaimant, other than a fiduciary under an	940
instrument who is not authorized by the instrument to disclaim the	941
interest of a beneficiary, may disclaim, in whole or in part, the	942
succession to any property by executing and by delivering, filing,	943
or recording a written disclaimer instrument in the manner	944
provided in this section.	945

(2) A disclaimant who is a fiduciary under an instrument may	946
disclaim, in whole or in part, any right, power, privilege, or	947
immunity, by executing and by delivering, filing, or recording a	948
written disclaimer instrument in the manner provided in this	949
section.	950

(3) The written instrument of disclaimer shall be signed and	951
acknowledged by the disclaimant and shall contain all of the	952
following:	953

(a) A reference to the donative instrument;

954

(b) A description of the property, part of property, or	955
interest disclaimed, and of any fiduciary right, power, privilege,	956
or immunity disclaimed;	957

(c) A declaration of the disclaimer and its extent.

958

(4) The guardian of the estate of a minor or an incompetent,	959
or the personal representative of a deceased person, whether or	960
not authorized by the instrument to disclaim, with the consent of	961
the probate division of the court of common pleas may disclaim, in	962
whole or in part, the succession to any property, or interest in	963
property, that the ward, if an adult and competent, or the	964
deceased, if living, might have disclaimed. The guardian or	965
personal representative, or any interested person may file an	966
application with the probate division of the court of common pleas	967
that has jurisdiction of the estate, asking that the court order	968
the guardian or personal representative to execute and deliver,	969
file, or record the disclaimer on behalf of the ward, estate, or	970
deceased person. The court shall order the guardian or personal	971
representative to execute and deliver, file, or record the	972
disclaimer if the court finds, upon hearing after notice to	973
interested parties and such other persons as the court shall	974
direct, that:	975

(a) It is in the best interests of those interested in the	976
estate of the person and of those who will take the disclaimed	977
interest;	978

(b) It would not materially, adversely affect the minor or	979
incompetent, or the beneficiaries of the estate of the decedent,	980
taking into consideration other available resources and the age,	981
probable life expectancy, physical and mental condition, and	982
present and reasonably anticipated future needs of the minor or	983
incompetent or the beneficiaries of the estate of the decedent.	984

A written instrument of disclaimer ordered by the court under	985
this division shall be executed and be delivered, filed, or	986
recorded within the time and in the manner in which the person	987
could have disclaimed if the person were living, an adult, and	988
competent.	989

(C) A partial disclaimer of property that is subject to a	990
burdensome interest created by the donative instrument is not	991
effective unless the disclaimed property constitutes a gift that	992
is separate and distinct from undisclaimed gifts.	993

(D) The disclaimant shall deliver, file, or record the	994
disclaimer, or cause the same to be done, prior to accepting any	995
benefits of the disclaimed interest and at any time after the	996
latest of the following dates:	997

(1) The effective date of the donative instrument if both the	998
taker and the taker's interest in the property are finally	999
ascertained on that date;	1000

(2) The date of the occurrence of the event upon which both	1001
the taker and the taker's interest in the property become finally	1002
ascertainable;	1003

(3) The date on which the disclaimant attains eighteen years	1004
of age or is no longer an incompetent, without tendering or	1005
repaying any benefit received while the disclaimant was under	1006
eighteen years of age or an incompetent, and even if a guardian of	1007
a minor or incompetent had filed an application pursuant to	1008
division (B)(4) of this section and the probate division of the	1009
court of common pleas involved did not consent to the guardian	1010
executing a disclaimer.	1011

(E) No disclaimer instrument is effective under this section	1012
if either of the following applies under the terms of the	1013
disclaimer instrument:	1014

(1) The disclaimant has power to revoke the disclaimer.

1015

(2) The disclaimant may transfer, or direct to be	1016
transferred, to self the entire legal and equitable ownership of	1017
the property subject to the disclaimer instrument.	1018

(F)(1) Subject to division (F)(2) of this section, if the	1019
interest disclaimed is created by a nontestamentary instrument,	1020
including, but not limited to, a transfer on death designation	1021
affidavit pursuant to section 5302.22 of the Revised Code, the	1022
disclaimer instrument shall be delivered personally or by	1023
certified mail to the trustee or other person who has legal title	1024
to, or possession of, the property disclaimed. If the interest	1025
disclaimed is created by a transfer on death designation affidavit	1026
pursuant to section 5302.22 of the Revised Code, the disclaimer	1027
instrument shall be filed with the county recorder of the county	1028
in which the real property that is the subject of that affidavit	1029
is located.	1030

(2) If the interest disclaimed is created by a testamentary	1031
instrument, by intestate succession, or by a certificate of title	1032
to a motor vehicle, watercraft, or outboard motor that evidences	1033
ownership of the motor vehicle, watercraft, or outboard motor that	1034
is transferable on death pursuant to section 2131.13 of the	1035
Revised Code, the disclaimer instrument shall be filed in the	1036
probate division of the court of common pleas in the county in	1037
which proceedings for the administration of the decedent's estate	1038
have been commenced, and an executed copy of the disclaimer	1039
instrument shall be delivered personally or by certified mail to	1040
the personal representative of the decedent's estate.	1041

(3) If no proceedings for the administration of the	1042
decedent's estate have been commenced, the disclaimer instrument	1043
shall be filed in the probate division of the court of common	1044
pleas in the county in which proceedings for the administration of	1045
the decedent's estate might be commenced according to law. The	1046
disclaimer instrument shall be filed and indexed, and fees	1047
charged, in the same manner as provided by law for an application	1048
to be appointed as personal representative to administer the	1049
decedent's estate. The disclaimer is effective whether or not	1050
proceedings thereafter are commenced to administer the decedent's	1051
estate. If proceedings thereafter are commenced for the	1052
administration of the decedent's estate, they shall be filed	1053
under, or consolidated with, the case number assigned to the	1054
disclaimer instrument.	1055

(4) If an interest in real estate is disclaimed, an executed	1056
copy of the disclaimer instrument also shall be recorded in the	1057
office of the recorder of the county in which the real estate is	1058
located. The disclaimer instrument shall include a description of	1059
the real estate with sufficient certainty to identify it, and	1060
shall contain a reference to the record of the instrument that	1061
created the interest disclaimed. If title to the real estate is	1062
registered under Chapters 5309. and 5310. of the Revised Code, the	1063
disclaimer interest shall be entered as a memorial on the last	1064
certificate of title. A spouse of a disclaimant has no dower or	1065
other interest in the real estate disclaimed.	1066

(G) If a donative instrument expressly provides for the	1067
distribution of property, part of property, or interest in	1068
property if there is a disclaimer, the property, part of	1069
property, or interest disclaimed shall be distributed or disposed	1070
of, and accelerated or not accelerated, in accordance with the	1071
donative instrument. In the absence of express provisions to the	1072
contrary in the donative instrument, the property, part of	1073
property, or interest in property disclaimed, and any future	1074
interest that is to take effect in possession or enjoyment at or	1075
after the termination of the interest disclaimed, shall descend,	1076
be distributed, or otherwise be disposed of, and shall be	1077
accelerated, in the following manner:	1078

(1) If intestate or testate succession is disclaimed, as if	1079
the disclaimant had predeceased the decedent;	1080

(2) If the disclaimant is one designated to take pursuant to	1081
a power of appointment exercised by a testamentary instrument, as	1082
if the disclaimant had predeceased the donee of the power;	1083

(3) If the donative instrument is a nontestamentary	1084
instrument, as if the disclaimant had died before the effective	1085
date of the nontestamentary instrument;	1086

(4) If the disclaimer is of a fiduciary right, power,	1087
privilege, or immunity, as if the right, power, privilege, or	1088
immunity was never in the donative instrument.	1089

(H) A disclaimer pursuant to this section is effective as of,	1090
and relates back for all purposes to, the date upon which the	1091
taker and the taker's interest have been finally ascertained.	1092

(I) A disclaimant who has a present and future interest in	1093
property, and disclaims the disclaimant's present interest in	1094
whole or in part, is considered to have disclaimed the	1095
disclaimant's future interest to the same extent, unless a	1096
contrary intention appears in the disclaimer instrument or the	1097
donative instrument. A disclaimant is not precluded from	1098
receiving, as an alternative taker, a beneficial interest in the	1099
property disclaimed, unless a contrary intention appears in the	1100
disclaimer instrument or in the donative instrument.	1101

(J) The disclaimant's right to disclaim under this section is	1102
barred if the disclaimant does any of the following:	1103

(1) Assigns, conveys, encumbers, pledges, or transfers, or	1104
contracts to assign, convey, encumber, pledge, or transfer, the	1105
property or any interest in it;	1106

(2) Waives in writing the disclaimant's right to disclaim and	1107
executes and delivers, files, or records the waiver in the manner	1108
provided in this section for a disclaimer instrument;	1109

(3) Accepts the property or an interest in it;

1110

(4) Permits or suffers a sale or other disposition of the	1111
property pursuant to judicial action against the disclaimant.	1112

(K) Neither a fiduciary's application for appointment or	1113
assumption of duties as a fiduciary nor a beneficiary's	1114
application for appointment as a personal representative or	1115
fiduciary waives or bars the disclaimant's right to disclaim a	1116
right, power, privilege, or immunity as a personal representative	1117
or fiduciary or the beneficiary's right to disclaim property.	1118

(L) The right to disclaim under this section exists	1119
irrespective of any limitation on the interest of the disclaimant	1120
in the nature of a spendthrift provision or similar restriction.	1121

(M) A disclaimer instrument or written waiver of the right to	1122
disclaim that has been executed and delivered, filed, or recorded	1123
as required by this section is final and binding upon all persons.	1124

(N)(1) The right to disclaim and the procedures for	1125
disclaimer established by this section are in addition to, and do	1126
not exclude or abridge, any other rights or procedures that exist	1127
or formerly existed under any other section of the Revised Code or	1128
at common law to assign, convey, release, refuse to accept,	1129
renounce, waive, or disclaim property.	1130

(2) A disclaimer is not considered a transfer or conveyance	1131
by the disclaimant, and no creditor of a disclaimant may avoid a	1132
disclaimer.	1133

(3) This section shall take precedence over any other section	1134
of the Revised Code that conflicts with this section.	1135

(O)(1) No person is liable for distributing or disposing of	1136
property in a manner inconsistent with the terms of a valid	1137
disclaimer if the distribution or disposition is otherwise proper	1138
and the person has no actual knowledge of the disclaimer.	1139

(2) No person is liable for distributing or disposing of	1140
property in reliance upon the terms of a disclaimer that is	1141
invalid because the right of disclaimer has been waived or barred	1142
if the distribution or disposition is otherwise proper and the	1143
person has no actual knowledge of the facts that constitute a	1144
waiver or bar to the right to disclaim.	1145

(P)(1) A disclaimant may disclaim pursuant to this section	1146
any interest in property that is in existence on September 27,	1147
1976, if either the interest in the property or the taker of the	1148
interest in the property is not finally ascertained on that date.	1149

(2) No disclaimer executed pursuant to this section destroys	1150
or diminishes an interest in property that exists on September 27,	1151
1976, in any person other than the disclaimant.	1152

(Q) This section may be applied separately to different	1153
interests or powers created in the disclaimant by the same	1154
testamentary or nontestamentary instrument.	1155

Sec. 5815.37. (A) If any interest in real property held by	1156
any trustee of an express trust that is wholly or partially	1157
governed by a law of this state or any interest in real property	1158
located in this state that is held by the trustee of a trust	1159
wholly governed by the law of one or more jurisdictions other than	1160
this state is temporarily conveyed to any beneficiary of that	1161
trust and reconveyed back to any trustee of that trust, the	1162
interest in the real property shall be subject to divisions (B)	1163
and (C) of this section if all of the following apply:	1164

(1) That temporary conveyance is for the principal purpose of	1165
enabling some or all of that interest in the real property to be	1166
used as collateral in a loan transaction.	1167

(2) The loan proceeds will be delivered to the trustee of the	1168
trust or will otherwise be principally used for the benefit of one	1169
or more beneficiaries of the trust.	1170

(3) The interest in the real property is reconveyed back to	1171
one or more trustees of the trust within a reasonable time after	1172
the reconveying beneficiary acquired actual notice that the lender	1173
has perfected the lender's collateral rights in and to the	1174
interest in the real property.	1175

(4) The lender in question is any of the following:

1176

(a) A bank, thrift, savings bank, savings and loan	1177
association, credit union, or any other similar financial	1178
institution if the activities of the other similar financial	1179
institution are subject to supervision by the Ohio superintendent	1180
of financial institutions, the federal deposit insurance	1181
corporation, the comptroller of the currency, the office of thrift	1182
supervision, any other comparable state or federal regulatory	1183
agency or entity, or a successor of any of them;	1184

(b) An insurance company subject to supervision by the Ohio	1185
department of insurance or any comparable agency established by	1186
the law of any other jurisdiction;	1187

(c) Any other corporation, limited liability company,	1188
partnership, or other similar or comparable entity the routine and	1189
regular business activities of which commonly include the making	1190
of commercial or residential loans that are wholly or partially	1191
secured by real property.	1192

(B) If a temporary conveyance and reconveyance of an interest	1193
in real property is made for the principal purpose of allowing a	1194
lender to acquire, perfect, foreclose on, or exercise collateral	1195
rights in and to the real property interest in question, the	1196
temporary conveyance to a beneficiary shall be disregarded for all	1197
other purposes, and the reconveyance back to a trustee shall	1198
relate back to the date immediately preceding that reconveyance on	1199
which the interest in the real property was transferred to any	1200
trustee of the trust in a transaction other than a loan	1201
transaction described in division (A)(1) of this section.	1202

(C) In connection with any temporary conveyance and	1203
reconveyance of an interest in real property pursuant to division	1204
(A) of this section, the following shall survive unimpaired after	1205
any reconveyance back to a trustee made pursuant to division	1206
(A)(3) of this section:	1207

(1) The rights, duties, and obligations of a lender under the	1208
documents governing the loan transaction, including, but not	1209
limited to, any of the following to the extent they are provided	1210
for in those documents:	1211

(a) A lender's collateral rights in and to any interest in	1212
real property that is reconveyed to a trustee;	1213

(b) The lender's rights under any mortgage, deed of trust,	1214
lien, encumbrance, or any other similar or comparable instrument	1215
or arrangement used to give the lender collateral rights in and to	1216
the interest being reconveyed, including, but not limited to, a	1217
lender's right to foreclose on that interest in real property;	1218

(c) The lender's obligations to make loans or advances or to	1219
provide any person with any notice called for by the documents	1220
governing the loan transaction.	1221

(2) The rights, duties, and obligations of any debtor under	1222
any documents governing the loan transaction, including, but not	1223
limited to, the following to the extent they are provided for in	1224
those documents:	1225

(a) The duty to repay the lender or any other person who is	1226
entitled to receive payments under the documents governing the	1227
loan transaction;	1228

(b) The duty to honor any agreements or covenants made by the	1229
debtor in the documents governing the loan transaction;	1230

(c) The right to receive any advances, loans, notices, or	1231
other benefits called for by the documents governing the loan	1232
transaction.	1233

(D) The following apply for purposes of division (A)(1) of	1234
this section:	1235

(1) A court shall liberally construe the temporary conveyance	1236
to a beneficiary of the trust in question in determining whether	1237
the principal purpose of the temporary conveyance is to enable	1238
some or all of the interest in the real property to be used as	1239
collateral in a loan transaction.	1240

(2) An interest in real property shall be considered to be	1241
used as collateral if, as part of a lending transaction, that	1242
interest is wholly or partially made subject to a mortgage, deed	1243
of trust, lien, encumbrance, or any other similar or comparable	1244
instrument or arrangement used to give the lender collateral	1245
rights in and to that interest.	1246

(E) A court shall liberally construe division (A)(2) of this	1247
section in determining whether the loan proceeds referred to in	1248
that division will be principally used for the benefit of one or	1249
more beneficiaries of the trust in question.	1250

(F) For purposes of division (A)(3) of this section, any	1251
reconveyance to a trustee shall be considered to have occurred	1252
within a reasonable time if it is made within one hundred twenty	1253
days of the date on which the reconveying beneficiary acquired	1254
actual notice that the lender has perfected the lender's	1255
collateral rights in and to the interest in the real property. In	1256
all other cases, a court shall consider all relevant facts and	1257
circumstances in determining whether a beneficiary has reconveyed	1258
the interest in the real property back to a trustee within a	1259
reasonable time after the reconveying beneficiary acquired that	1260
actual notice.	1261

(G)(1) A court shall liberally construe division (A)(4) of	1262
this section in determining whether a corporation, limited	1263
liability company, partnership, or other similar or comparable	1264
entity qualifies as a lender within the meaning of that division.	1265

(2) Subject to the rule of liberal interpretation set forth	1266
in division (G)(1) of this section, the Ohio superintendent of	1267
financial institutions may from time to time issue regulations	1268
setting forth a nonexhaustive list of entities that qualify as a	1269
lender within the meaning of division (A)(4) of this section and	1270
also may from time to time issue regulations setting forth	1271
specific entities or classes of entities that do not qualify as a	1272
lender within the meaning of that division.	1273

(H) An interest in real property may be subject to or	1274
involved in more than one loan transaction undertaken pursuant to	1275
this section.	1276

Sec. 5816.01.  This chapter may be cited as the Ohio legacy	1277
trust act.	1278

Sec. 5816.02.  As used in this chapter, unless the context	1279
otherwise requires:	1280

(A)(1) "Advisor" means a person to whom both of the following	1281
apply:	1282

(a) The person satisfies the eligibility criteria specified	1283
in division (A) of section 5816.11 of the Revised Code.	1284

(b) The person is given the authority by the terms of a	1285
legacy trust to remove or appoint one or more trustees of the	1286
trust or to direct, consent to, or disapprove a trustee's actual	1287
or proposed investment, distribution, or other decisions.	1288

(2) Any person to whom division (A)(1) of this section	1289
applies is considered an advisor even if that person is	1290
denominated by another title, such as protector.	1291

(B) "Asset" means property of a transferor but does not	1292
include any of the following:	1293

(1) Property to the extent it is encumbered by a valid lien;

1294

(2) Property to the extent it is exempt at the time of a	1295
qualified disposition under any applicable nonbankruptcy law,	1296
including, but not limited to, section 2329.66 of the Revised	1297
Code;	1298

(3) Property held in the form of a tenancy by the entireties	1299
to the extent that, under the law governing the entireties estate	1300
at the time of a qualified disposition, it is not subject to	1301
process by a creditor holding a claim against only one tenant;	1302

(4) Any property transferred from a nonlegacy trust to a	1303
legacy trust to the extent that the property would not be subject	1304
to attachment under the applicable nonbankruptcy law governing	1305
that nonlegacy trust.	1306

(C) "Bankruptcy Code" means the United States Bankruptcy	1307
Code, 11 U.S.C. Chapter 11, as amended.	1308

(D) "Beneficiary" has the same meaning as in section 5801.01	1309
of the Revised Code.	1310

(E) "Claim" means a right to payment, whether or not the	1311
right is reduced to judgment or is liquidated, unliquidated,	1312
fixed, contingent, matured, unmatured, disputed, undisputed,	1313
legal, equitable, secured, or unsecured.	1314

(F) "Creditor" means a person who has a claim against a	1315
transferor and any transferee or assignee of, or successor to,	1316
that claim.	1317

(G) "Debt" means a liability on a claim.

1318

(H) "Disposition" means a transfer, conveyance, or assignment	1319
of property, including, but not limited to, a partial, contingent,	1320
undivided, or co-ownership interest in property. "Disposition"	1321
includes the exercise of a general power so as to cause a transfer	1322
of property to a trustee or trustees but does not include any of	1323
the following:	1324

(1) The release or relinquishment of an interest in property	1325
that, until the release or relinquishment, was the subject of a	1326
qualified disposition;	1327

(2) The exercise of a limited power so as to cause a transfer	1328
of property to a trustee or trustees;	1329

(3) A disclaimer of an interest in a trust, bequest, devise,	1330
or inheritance.	1331

(I) "Internal Revenue Code" means the "Internal Revenue Code	1332
of 1986," 100 Stat. 2085, 26 U.S.C. 1 et seq., as amended.	1333

(J) "Investment decision" means any participation in any	1334
decision regarding the retention, purchase, sale, exchange,	1335
tender, or other transaction affecting the ownership of or rights	1336
in investments.	1337

(K)(1) "Legacy trust" means a trust evidenced by a written	1338
trust instrument to which all of the following apply:	1339

(a) The trust has, names, or appoints at least one qualified	1340
trustee for or in connection with the property that is the subject	1341
of a qualified disposition.	1342

(b) The trust expressly incorporates the laws of this state	1343
to wholly or partially govern its validity, construction, and	1344
administration.	1345

(c) The trust expressly states that it is irrevocable.

1346

(d) The trust has a spendthrift provision applicable to the	1347
interests of any beneficiary in the trust property, including any	1348
interests of a transferor in the trust property.	1349

(2) A trust that satisfies the criteria specified in division	1350
(K)(1) of this section is considered a legacy trust even if the	1351
trust instrument also allows for one or more nonqualified trustees	1352
and regardless of the language used to satisfy those criteria.	1353

(L) "Lien" has the same meaning as in section 1336.01 of the	1354
Revised Code.	1355

(M) "Nonlegacy trust" means any trust other than a legacy	1356
trust.	1357

(N) "Nonqualified trustee" means any trustee other than a	1358
qualified trustee.	1359

(O) "Person" has the same meaning as in section 5801.01 of	1360
the Revised Code.	1361

(P) "Property" has the same meaning as in section 5801.01 of	1362
the Revised Code.	1363

(Q) "Qualified affidavit" means an affidavit that meets the	1364
requirements of section 5816.06 of the Revised Code.	1365

(R) "Qualified disposition" means a disposition by or from a	1366
transferor to any trustee of a trust that is, was, or becomes a	1367
legacy trust.	1368

(S) "Qualified trustee" means a person who is not a	1369
transferor and to whom both of the following apply:	1370

(1)(a) The person, if a natural person, is a resident of this	1371
state.	1372

(b) The person, if not a natural person, is authorized by the	1373
law of this state or by a court of competent jurisdiction of this	1374
state to act as a trustee and whose activities are subject to	1375
supervision by the Ohio superintendent of banks, the federal	1376
deposit insurance corporation, the comptroller of the currency, or	1377
the office of thrift supervision or a successor of any of them.	1378

(2) The person maintains or arranges for custody in this	1379
state of some or all of the property that is the subject of the	1380
qualified disposition, maintains records for the legacy trust on	1381
an exclusive or nonexclusive basis, prepares or arranges for the	1382
preparation of required income tax returns for the legacy trust,	1383
or otherwise materially participates in the administration of the	1384
legacy trust.	1385

(T) "Spendthrift provision" has the same meaning as in	1386
section 5801.01 of the Revised Code.	1387

(U) "Spouse" and "former spouse" means only the person to	1388
whom a transferor was married on or before a qualified disposition	1389
is made.	1390

(V) "Transferor" means a person who directly or indirectly	1391
makes a disposition.	1392

(W) "Valid lien" has the same meaning as in section 1336.01	1393
of the Revised Code.	1394

Sec. 5816.03.  (A) In addition to any other method allowed by	1395
law, the spendthrift provision of a legacy trust may be stated as	1396
provided in division (B) of section 5805.01 of the Revised Code.	1397

(B) Except as otherwise provided in this section, the	1398
spendthrift provisions of a legacy trust shall restrain both	1399
voluntary and involuntary transfer of a transferor's interest in	1400
that trust. Any spendthrift provision in a legacy trust is	1401
enforceable under any applicable nonbankruptcy law within the	1402
meaning of section 541(c)(2) of the Bankruptcy Code regardless of	1403
whether or not the relevant legacy trust instrument makes any	1404
reference to that enforceability. In addition to the restraints	1405
required by this division, a legacy trust and its spendthrift	1406
provisions may provide for any other restraints on alienation that	1407
are permitted by any law of this state.	1408

(C) Notwithstanding division (B) of this section or the terms	1409
of any spendthrift provision, but subject to divisions (D), (E),	1410
and (F) of this section, a transferor's interest in property that	1411
is the subject of a qualified disposition may be attached or	1412
otherwise involuntarily alienated in connection with any debt that	1413
the transferor owes pursuant to an agreement or court order for	1414
either of the following:	1415

(1) The payment of child or spousal support or alimony to or	1416
for the transferor's spouse, former spouse, child, or children, or	1417
to any governmental agency that is designated by statute, rule, or	1418
regulation to be the payee of that child or spousal support or	1419
alimony;	1420

(2) The division or distribution of property in favor of the	1421
transferor's spouse or former spouse.	1422

(D) A transferor's interest in property that is transferred	1423
pursuant to a qualified disposition and the transferor's	1424
beneficial interest in a legacy trust shall not be subject to any	1425
claim for forced heirship or legitime.	1426

(E) A transferor's interest in property that is transferred	1427
pursuant to a qualified disposition and the transferor's	1428
beneficial interest in a legacy trust shall not be subject to a	1429
distributive award under section 3105.171 of the Revised Code or	1430
to any similar award under the law of another jurisdiction, to any	1431
person other than the transferor's spouse or former spouse. A	1432
court shall liberally construe and apply this provision in finding	1433
that such similarity exists.	1434

(F) Nothing in this section shall deprive any beneficiary of	1435
any exemption rights that the beneficiary may have under any	1436
applicable law after the trust property is received by that	1437
beneficiary.	1438

Sec. 5816.04.  To the extent conferred by the governing	1439
legacy trust instrument, a transferor to a legacy trust may have	1440
any or all of the rights, powers, and interests described in	1441
section 5816.05 of the Revised Code. A transferor shall have no	1442
rights, powers, or interests in, over, to, or regarding the corpus	1443
or income of a legacy trust unless those rights, powers, or	1444
interests are granted, permitted, or recognized by both section	1445
5816.05 of the Revised Code and the governing legacy trust	1446
instrument. Any written, verbal, tacit, express, or implied	1447
agreement or understanding or any other agreement or understanding	1448
purporting to grant, permit, or recognize any greater rights,	1449
powers, or interests than are provided in this section or the	1450
governing legacy trust instrument is void. Any portion of a legacy	1451
trust instrument that is not voided under this section shall	1452
remain valid and effective.	1453

Sec. 5816.05.  A legacy trust may allow or provide for any or	1454
all of the following rights, powers, interests, or provisions,	1455
none of which grants, or is considered to be, either alone or in	1456
any combination, a right or power to revoke a trust or to	1457
voluntarily or involuntarily transfer an interest in that trust:	1458

(A) A provision that, upon the happening of a defined event,	1459
results in the termination of a transferor's right to mandatory	1460
income or principal;	1461

(B) The power of a transferor to veto a distribution from the	1462
trust;	1463

(C) A power of appointment, other than a power to appoint to	1464
a transferor, a creditor of the transferor, the estate of the	1465
transferor, or a creditor of the transferor's estate, that is	1466
exercisable by will or by other written instrument of a transferor	1467
effective upon the death of the transferor or during the lifetime	1468
of the transferor;	1469

(D) The right of a transferor to receive trust income as set	1470
forth in the trust instrument.	1471

(E) Both of the following:

1472

(1) A transferor's potential or actual receipt of income or	1473
principal from a charitable remainder unitrust or charitable	1474
remainder annuity trust as those terms are defined in section 664	1475
of the Internal Revenue Code;	1476

(2) The transferor's right, at any time and from time to time	1477
by written instrument delivered to the trustee, to release the	1478
transferor's retained interest in that unitrust or annuity trust,	1479
in whole or in part, in favor of one or more charitable	1480
organizations that have a succeeding beneficial interest in that	1481
unitrust or annuity trust;	1482

(F) The power of a transferor to consume, invade, or	1483
appropriate property of the trust, but only if limited in each	1484
calendar year to five per cent of the value of the trust principal	1485
at the time of the exercise of the power;	1486

(G) A transferor's potential or actual receipt or use of	1487
principal or income of the trust if the potential or actual	1488
receipt or use is or would be the result of any of the following	1489
that applies with respect to one or more of the qualified	1490
trustees:	1491

(1) A qualified trustee's acting in the trustee's discretion.	1492
For purposes of division (G)(1) of this section, a qualified	1493
trustee shall have discretion with respect to the distribution or	1494
use of principal or income unless the discretion is expressly	1495
denied to the trustee by the terms of the trust instrument.	1496

(2) A qualified trustee's acting pursuant to a standard in	1497
the trust instrument that governs the distribution or use of	1498
principal or income;	1499

(3) A qualified trustee's acting at the direction of an	1500
advisor who is acting in the advisor's discretion or pursuant to a	1501
standard in the trust instrument that governs the distribution or	1502
use of principal or income. If an advisor is authorized to direct	1503
that distribution or use, the advisor's authority shall be	1504
discretionary unless otherwise expressly stated in the trust	1505
instrument.	1506

(H) The right of a transferor to remove any advisor and	1507
appoint a new advisor who satisfies the eligibility criteria set	1508
forth in division (A) of section 5816.11 of the Revised Code;	1509

(I) The right of a transferor to remove any trustee and	1510
appoint a new trustee;	1511

(J) A transferor's potential or actual use of real property	1512
or tangible personal property, including, but not limited to,	1513
property held under a qualified personal residence trust as	1514
described in section 2702(c) of the Internal Revenue Code and	1515
regulations promulgated under that section, or a transferor's	1516
possession and enjoyment of a qualified interest as defined in	1517
section 2702(b) of the Internal Revenue Code;	1518

(K) Any provision requiring or permitting the potential or	1519
actual use of trust income or principal to pay, in whole or in	1520
part, income taxes due on the income of the trust, including, but	1521
not limited to, any provision permitting that use in the	1522
discretion of any one or more of the qualified trustees acting in	1523
the qualified trustee's discretion or at the direction of an	1524
advisor who is acting in the advisor's discretion;	1525

(L) The ability of a qualified trustee, whether pursuant to	1526
the qualified trustee's discretion or the terms of the legacy	1527
trust instrument or at the direction of an advisor, to pay after	1528
the death of a transferor all or any part of the debts of the	1529
transferor outstanding on or before the transferor's death, the	1530
expenses of administering the transferor's estate, or any estate,	1531
gift, generation skipping transfer, or inheritance tax;	1532

(M) Any provision that pours back after the death of a	1533
transferor all or part of the trust property to the transferor's	1534
estate or any trust;	1535

(N) Any other rights, powers, interests, or provisions	1536
permitted or allowed by any other section of this chapter.	1537

Sec. 5816.06.  (A) Except as otherwise provided in this	1538
section, a transferor shall sign a qualified affidavit before or	1539
substantially contemporaneously with making a qualified	1540
disposition.	1541

(B) A qualified affidavit shall be notarized and shall	1542
contain all of the following statements under oath:	1543

(1) The property being transferred to the trust was not	1544
derived from unlawful activities.	1545

(2) The transferor has full right, title, and authority to	1546
transfer the property to the legacy trust.	1547

(3) The transferor will not be rendered insolvent immediately	1548
after the transfer of the property to the legacy trust.	1549

(4) The transferor does not intend to defraud any creditor by	1550
transferring the property to the legacy trust.	1551

(5) There are no pending or threatened court actions against	1552
the transferor, except for any court action identified by the	1553
affidavit or an attachment to the affidavit.	1554

(6) The transferor is not involved in any administrative	1555
proceeding, except for any proceeding identified by the affidavit	1556
or an attachment to the affidavit.	1557

(7) The transferor does not contemplate at the time of the	1558
transfer the filing for relief under the Bankruptcy Code.	1559

(C) A qualified affidavit is considered defective if it	1560
materially fails to meet the requirements set forth in division	1561
(B) of this section, but a qualified affidavit is not considered	1562
defective due to any one or more of the following:	1563

(1) Any nonsubstantive variances from the language set forth	1564
in division (B) of this section;	1565

(2) Any statements or representations in addition to those	1566
set forth in division (B) of this section if the statements or	1567
representations do not materially contradict the statements or	1568
representations required by that division;	1569

(3) Any technical errors in the form, substance, or method of	1570
administering an oath if those errors were not the fault of the	1571
affiant, and the affiant reasonably relied upon another person to	1572
prepare or administer the oath.	1573

(D)(1) A qualified affidavit is not required from a	1574
transferor who is not a beneficiary of the legacy trust that	1575
receives the disposition.	1576

(2) A subsequent qualified affidavit is not required in	1577
connection with any qualified disposition made after the execution	1578
of an earlier qualified affidavit if that disposition is a part	1579
of, is required by, or is the direct result of, a prior qualified	1580
disposition that was made in connection with that earlier	1581
qualified affidavit.	1582

(E) If a qualified affidavit is required by this section and	1583
a transferor fails to timely sign a qualified affidavit or signs a	1584
defective qualified affidavit, subject to the normal rules of	1585
evidence, that failure or defect may be considered as evidence in	1586
any proceeding commenced pursuant to section 5816.07 of the	1587
Revised Code, but the legacy trust or the validity of any	1588
attempted qualified disposition shall not be affected in any other	1589
way due to that failure or defect.	1590

Sec. 5816.07.  (A) Notwithstanding any provision of law to	1591
the contrary, no creditor may bring an action of any kind,	1592
including, but not limited to, an action to enforce a judgment	1593
entered by a court or other body having adjudicative authority, an	1594
action at law or in equity, or an action for an attachment or	1595
other final or provisional remedy, against any person who made or	1596
received a qualified disposition, against or involving any	1597
property that is the subject of a qualified disposition or is	1598
otherwise held by or for any trustee as part of a legacy trust, or	1599
against any trustee of a legacy trust, except that a creditor,	1600
subject to this section and section 5816.08 of the Revised Code,	1601
may bring an action to avoid any qualified disposition of an asset	1602
on the ground that a transferor made the qualified disposition	1603
with the specific intent to defraud the specific creditor bringing	1604
the action.	1605

(B) A creditor's cause of action or claim for relief under	1606
division (A) of this section to avoid any qualified disposition of	1607
an asset is extinguished unless that action is brought by a	1608
creditor of a transferor who meets one of the following	1609
requirements:	1610

(1) The creditor is a creditor of the transferor before the	1611
relevant qualified disposition, and the action is brought within	1612
the later of the following periods:	1613

(a) Eighteen months after the qualified disposition;

1614

(b) Six months after the qualified disposition is or	1615
reasonably could have been discovered by the creditor if the	1616
creditor files a suit against the transferor, other than an action	1617
under division (A) of this section to avoid the qualified	1618
disposition, or makes a written demand for payment on the	1619
transferor that in either case asserts a claim based on an act or	1620
omission of the transferor that occurred before the qualified	1621
disposition, and that suit is filed, or the written demand is	1622
delivered to the transferor, within three years after the	1623
qualified disposition.	1624

(2) The creditor becomes a creditor after the qualified	1625
disposition, and the action under division (A) of this section to	1626
avoid the qualified disposition is brought within eighteen months	1627
after the qualified disposition.	1628

(C) In any action to avoid the qualified disposition under	1629
this section, the burden is upon the creditor to prove the matter	1630
by clear and convincing evidence. This division is construed as	1631
providing a substantive rather than a procedural rule or right	1632
under the law of this state.	1633

(D) Notwithstanding any provision of law to the contrary, a	1634
creditor, including a creditor whose claim arose before or after a	1635
qualified disposition, or any other person shall have only the	1636
rights and remedies with respect to a qualified disposition that	1637
are provided in this section and section 5816.08 of the Revised	1638
Code, and the creditor or other person shall have no claim or	1639
cause of action against any trustee or advisor of a legacy trust	1640
or against any person involved in the counseling in connection	1641
with, or the drafting, preparation, execution, administration, or	1642
funding of, a legacy trust.	1643

(E) Notwithstanding any provision of law to the contrary, and	1644
in addition to any other limitations, restrictions, or bars	1645
imposed by this section, no action of any kind, including, but not	1646
limited to, an action to enforce a judgment entered by a court or	1647
other body having adjudicative authority, shall be brought at law	1648
or in equity against a trustee or an advisor of a legacy trust or	1649
against any person involved in the counseling in connection with,	1650
or the drafting, preparation, execution, administration, or	1651
funding of, a legacy trust if and to the extent that, in	1652
connection with the qualified disposition that forms the basis of	1653
that action, the time in which a creditor could sue to avoid that	1654
qualified disposition would have expired under this section.	1655

(F) If more than one qualified disposition is made in	1656
connection with the same legacy trust, all of the following apply:	1657

(1) Each qualified disposition will be separately evaluated,	1658
without regard to any subsequent qualified disposition, to	1659
determine whether a creditor's claim regarding that particular	1660
qualified disposition is extinguished as provided in division (B)	1661
of this section.	1662

(2) The following apply when determining the order in which	1663
property is paid, applied, or distributed from a legacy trust:	1664

(a) Any payment, application, or distribution of money is	1665
considered to have been made from or with the money most recently	1666
received or acquired by any trustee of a legacy trust except to	1667
the extent that it is proven otherwise beyond a reasonable doubt.	1668
As used in division (F)(2)(a) of this section:	1669

(i) "Money" means cash or cash equivalents.

1670

(ii) "Cash" means the coins or currency of the United States	1671
or any other nation.	1672

(iii) "Cash equivalent" includes certified or uncertified	1673
checks; money orders; bank drafts; any electronic transfer of	1674
funds; negotiable instruments; instruments indorsed in blank or in	1675
bearer form; securities issued or guaranteed by the United States,	1676
any state of the United States, or any state or federal agency;	1677
funds on deposit in any savings or checking account or any similar	1678
account; funds on deposit in any money market account or similar	1679
account; any demand deposit account, time deposit account, or	1680
savings deposit account at any bank, savings and loan association,	1681
brokerage house, or similar institution; or any other monetary	1682
instrument or device that is commonly or routinely accepted as a	1683
cash equivalent. Division (F)(2)(a)(iii) of this section shall be	1684
liberally construed and applied.	1685

(b) Any payment, application, or distribution of fungible	1686
assets other than money is considered to have been made from or	1687
with the fungible assets most recently received or acquired by any	1688
trustee of a legacy trust except to the extent that it is proven	1689
otherwise by clear and convincing evidence. For purposes of	1690
division (F)(2)(b) of this section:	1691

(i) Any asset that can be classified as either money or a	1692
fungible asset shall be classified as money.	1693

(ii) "Fungible assets" means any assets, other than money,	1694
that are interchangeable for commercial purposes and the	1695
properties of which are essentially identical. Division	1696
(F)(2)(b)(ii) of this section shall be liberally construed and	1697
applied.	1698

(c) Division (F)(2) of this section is construed as providing	1699
a substantive rather than a procedural rule or right under the law	1700
of this state.	1701

(G) For purposes of this section, the counseling in	1702
connection with, or the drafting, preparation, execution,	1703
administration, or funding of, a legacy trust includes the	1704
counseling in connection with, or the drafting, preparation,	1705
execution, administration, or funding of, any limited partnership,	1706
limited liability company, corporation, or similar or comparable	1707
entity if the limited partnership interests, limited liability	1708
company interests, stock, or other similar or comparable ownership	1709
interests in the relevant entity are subsequently transferred to	1710
any trustee of any trust that is, was, or becomes a legacy trust.	1711

Sec. 5816.08.  All of the following apply in connection with	1712
any action brought pursuant to this section or division (A) of	1713
section 5816.07 of the Revised Code:	1714

(A) If a qualified disposition is wholly or partially	1715
avoided, all of the following apply:	1716

(1) That specific qualified disposition shall be avoided only	1717
to the extent necessary to satisfy a transferor's debt to the	1718
creditor who brought the action pursuant to division (A) of	1719
section 5816.07 of the Revised Code, and any part of the qualified	1720
disposition that is not used to satisfy that debt shall remain	1721
subject to the legacy trust in question.	1722

(2) All other qualified dispositions to any trustee of the	1723
legacy trust in question, including, but not limited to, any	1724
qualified disposition of a partial, co-ownership, or undivided	1725
interest in property by a transferor other than the transferor	1726
whose qualified disposition is avoided, together with the legacy	1727
trust itself, shall remain valid and effective.	1728

(3) If the court is satisfied that a trustee has not acted in	1729
bad faith in accepting or administering the property that is the	1730
subject of the avoided qualified disposition, all of the following	1731
apply:	1732

(a) The trustee shall have a first and paramount lien against	1733
the property that is the subject of the qualified disposition in	1734
an amount equal to the entire cost, including attorney's fees,	1735
properly incurred by the trustee in the defense of the action or	1736
proceedings to avoid the qualified disposition.	1737

(b) The qualified disposition shall be avoided subject to the	1738
proper fees, costs, and pre-existing rights, claims, and interests	1739
of the trustee and of any predecessor trustee that has not acted	1740
in bad faith.	1741

(c) For purposes of division (A)(3) of this section, no	1742
trustee shall be considered to have acted in bad faith merely	1743
because the trustee accepted the property that is the subject of	1744
the qualified disposition.	1745

(4) If the court is satisfied that a beneficiary of a legacy	1746
trust has not acted in bad faith in receiving a distribution from	1747
that trust, the avoidance of the qualified disposition shall be	1748
subject to the right of the beneficiary to retain that	1749
distribution if the distribution was made upon the exercise of a	1750
trust power or discretion vested in a trustee or advisor and that	1751
power or discretion was exercised prior to the creditor's	1752
commencement of the action to avoid the qualified disposition. For	1753
purposes of division (A)(4) of this section, no beneficiary,	1754
including a beneficiary who is also a transferor of the trust,	1755
shall be considered to have acted in bad faith merely because the	1756
beneficiary accepted a distribution made in accordance with the	1757
terms of the trust instrument.	1758

(5) A creditor has the burden of proving by clear and	1759
convincing evidence that a trustee or a beneficiary acted in bad	1760
faith under division (A)(3) or (4) of this section. Division	1761
(A)(5) of this section is construed as providing a substantive	1762
rather than a procedural rule or right under the law of this	1763
state.	1764

(B) The court shall award reasonable attorney's fees and	1765
costs to any prevailing party in any final judgment rendered in	1766
any action wholly or partially brought under this section or	1767
division (A) of section 5816.07 of the Revised Code.	1768

Sec. 5816.09.  Any successor or replacement trustees of a	1769
legacy trust shall be determined or selected in the following	1770
manners:	1771

(A)(1) Division (A)(2) of this section applies if in any	1772
action involving a legacy trust or any trustee of the legacy trust	1773
a court takes an action in which the court declines to apply the	1774
law of this state in determining any of the following matters:	1775

(a) The validity, construction, or administration of the	1776
trust;	1777

(b) The effect of any term or condition of the trust,	1778
including, but not limited to, a spendthrift provision;	1779

(c) The rights and remedies of any creditor or other suitor	1780
in connection with a qualified disposition.	1781

(2) Immediately upon the court's action under division (A)(1)	1782
of this section and without the need for any order of any court,	1783
any qualified trustee who is a party to that action shall cease in	1784
all respects to be a trustee of the legacy trust, and the position	1785
of trustee shall be occupied in accordance with the terms of the	1786
trust instrument that governed the legacy trust immediately before	1787
that cessation, or, if the terms of the trust instrument do not	1788
provide for another trustee and the trust would otherwise be	1789
without a trustee, any court of this state, upon the application	1790
of any beneficiary of the legacy trust, shall appoint a successor	1791
qualified trustee upon the terms and conditions that it determines	1792
to be consistent with the purposes of the trust and this chapter.	1793
Upon a qualified trustee ceasing to be a trustee pursuant to	1794
division (A)(2) of this section, that qualified trustee shall have	1795
no power or authority other than to convey trust property to any	1796
other trustee that is appointed, installed, or serving in	1797
accordance with that division.	1798

(3) For purposes of division (A) of this section, "court"	1799
includes a judicial tribunal, an administrative tribunal, or other	1800
adjudicative body or panel.	1801

(B) In all cases other than the situation described in	1802
division (A) of this section, both of the following apply:	1803

(1) If a legacy trust ceases to have at least one qualified	1804
trustee, the vacancy in the qualified trusteeship shall be filled	1805
pursuant to section 5807.04 of the Revised Code except to the	1806
extent that the legacy trust expressly provides otherwise.	1807

(2) If a legacy trust ceases to have at least one trustee,	1808
the vacancy in the trusteeship shall be filled pursuant to section	1809
5807.04 of the Revised Code, and the successor trustee shall be a	1810
qualified trustee unless the legacy trust instrument expressly	1811
provides otherwise.	1812

Sec. 5816.10.  (A) In the event of any conflict between any	1813
provision of this chapter and any provision of Chapter 1336. of	1814
the Revised Code or any other provision of law similar to any	1815
provision of Chapter 1336. of the Revised Code, the provision of	1816
this chapter shall control and prevail.	1817

(B) A statement in a trust instrument stating that it "shall	1818
be governed by the laws of Ohio" or other statement to similar	1819
effect or of similar import is considered to expressly incorporate	1820
the laws of this state to govern the validity, construction, and	1821
administration of that trust instrument and to satisfy division	1822
(K)(1)(b) of section 5816.02 of the Revised Code.	1823

(C) A disposition by a nonqualified trustee to a qualified	1824
trustee shall not be treated as other than a qualified disposition	1825
solely because the nonqualified trustee is a trustee of a	1826
nonlegacy trust.	1827

(D) A disposition to any nonqualified trustee of a legacy	1828
trust shall be treated as a qualified disposition if at the time	1829
of the disposition any of the following applies:	1830

(1) There is at least one qualified trustee serving pursuant	1831
to the terms of that legacy trust.	1832

(2) There is no qualified trustee serving but the	1833
circumstances require the appointment or installation of a	1834
qualified trustee pursuant to division (A)(2) of section 5816.09	1835
of the Revised Code.	1836

(3) There is no qualified trustee serving but within one	1837
hundred eighty days after the date of disposition a qualified	1838
trustee fills the vacancy in the qualified trusteeship or an	1839
application to appoint a qualified trustee is filed pursuant to	1840
division (B) of section 5816.09 of the Revised Code.	1841

(E) If a disposition is made by a trustee of a nonlegacy	1842
trust to a trustee of a legacy trust, both of the following apply:	1843

(1) Except to the extent expressly stated otherwise by the	1844
terms of that disposition, the disposition shall be considered a	1845
qualified disposition for the benefit of all of the persons who	1846
are the beneficiaries of both the nonlegacy trust and the legacy	1847
trust.	1848

(2) The date of the disposition to the legacy trust shall be	1849
considered to be the date on which the property that was part of	1850
the nonlegacy trust was first continuously subject to any law of a	1851
jurisdiction other than this state that is similar to this	1852
chapter. A court shall liberally construe and apply division	1853
(E)(2) of this section in finding that such continuity and	1854
similarity exist.	1855

(F) A legacy trust may contain any terms or conditions that	1856
provide for changes in or to the place of administration, situs,	1857
governing law, trustees or advisors, or the terms or conditions of	1858
the legacy trust or for other changes permitted by law.	1859

(G) Any valid lien attaching to property immediately before a	1860
disposition of that property to a trustee of a legacy trust shall	1861
survive the disposition, and the trustee shall take title to the	1862
property subject to the valid lien. Nothing in this chapter shall	1863
be construed to authorize any disposition that is prohibited by	1864
the terms of a lien agreement.	1865

(H) To the maximum extent permitted by the Ohio Constitution	1866
and the United States Constitution, the courts of this state shall	1867
exercise jurisdiction over any legacy trust or any qualified	1868
disposition and shall adjudicate any case or controversy brought	1869
before them regarding, arising out of, or related to, any legacy	1870
trust or any qualified disposition if that case or controversy is	1871
otherwise within the subject matter jurisdiction of the court.	1872
Subject to the Ohio Constitution and the United States	1873
Constitution, no court of this state shall dismiss or otherwise	1874
decline to adjudicate any case or controversy described in this	1875
division on the ground that a court of another jurisdiction has	1876
acquired or may acquire proper jurisdiction over, or may provide	1877
proper venue for, that case or controversy or the parties to the	1878
case or controversy. Nothing in this division shall be construed	1879
to do either of the following:	1880

(1) Prohibit a transfer or other reassignment of any case or	1881
controversy from one court of this state to another court of this	1882
state;	1883

(2) Expand or limit the subject matter jurisdiction of any	1884
court of this state.	1885

Sec. 5816.11.  (A) Any person may serve as an advisor of a	1886
legacy trust except that a transferor may act as an advisor only	1887
in connection with investment decisions.	1888

(B) An advisor shall be considered a fiduciary unless the	1889
terms of a legacy trust instrument expressly provide otherwise.	1890

Sec. 5816.12.  Except to the extent expressly provided	1891
otherwise by the terms of a legacy trust instrument, each trustee	1892
and each advisor of a legacy trust shall have the greatest	1893
discretion permitted by law in connection with all matters of	1894
trust administration, all trust distributions, and all other	1895
trustee or advisor decisions.	1896

Sec. 5816.13.  No beneficiary or other person shall be	1897
considered to have a property interest in any property of a legacy	1898
trust to the extent that the distribution of that property is	1899
subject to the discretion of one or more qualified trustees or	1900
advisors, either acting alone or in conjunction with any other	1901
person, including any person authorized to veto any distributions	1902
from the legacy trust.	1903

Sec. 5816.14.  This chapter applies to qualified dispositions	1904
made on or after the effective date of this section.	1905

Section 2. That existing sections 317.08, 1336.04, 2131.08,	1906
2131.09, 2329.66, 5805.06, 5808.08, 5815.24, 5815.25, and 5815.36	1907
of the Revised Code are hereby repealed.	1908