S.B. 106

128th General Assembly

(As Introduced)

 

Sens.     Buehrer and Kearney, R. Miller, Schuler, Seitz, Turner

·        Excludes from the application of the savings statute certain specified estate and trust proceedings that have limitation periods.

·        Increases from $10,000 or less to $25,000 or less the amount of an estate of a ward that the court may terminate upon application by the guardian, for which the court may distribute the estate assets without a guardianship, and for which the court may authorize the settlement of claims of minors or adult incompetents without the appointment of a guardian.

·        Provides that the termination of a marriage revokes any trust provision that confers a beneficial interest on the former spouse.

Termination of guardianship

Current law provides that when the whole estate of a ward, or of several wards jointly, under the same guardianship, does not exceed $10,000 in value, the guardian may apply to the probate court for an order to terminate the guardianship.  Upon proof that it would be for the best interest of the ward to terminate the guardianship, the court may order the guardianship terminated and direct the guardian, if the ward is a minor, to deposit the assets of the guardianship in a depository authorized to receive fiduciary funds, payable to the ward when the ward attains majority, or the courts may authorize the delivery of the assets to the natural guardian of the minor, to the person by whom the minor is maintained, to the executive director of the children services in the county, or to the minor.  The bill increases from guardianships that do not exceed $10,000 in value to guardianships that do not exceed $25,000 in value the size of guardianships that can be terminated under this procedure.

If the estate is $10,000 or less and the ward is a minor, the court, without the appointment of a guardian by the court or the giving of bond, may authorize the deposit in a depository authorized to receive fiduciary funds, payable to the guardian when appointed, or to the ward when the ward attains majority, or the court may authorize the delivery to the natural guardian of the minor, to the person by whom the minor is maintained, to the executive director who is responsible for the administration of children services in the county, or to the minor.  If the whole estate of a person over 18 years of age, who has been adjudged mentally ill or mentally retarded, does not exceed $10,000 in value, the court, without the appointment of a guardian by the court or the giving of bond, may authorize the deposit of the estate in a depository authorized to receive fiduciary funds in the name of a suitable person to be designated by the court, or if the assets do not consist of money, the court may authorize delivery to a suitable person to be designated by the court.  The person receiving the assets must hold and dispose of them in the manner the court directs.  The bill increases from $10,000 or less to $25,000 or less the size of an estate for which the court may avoid the creation of guardianship under the above procedure.  It also removes the reference to "mentally ill or mentally retarded" in the above described provision and replaces it with "incompetent."  (R.C. 2111.05.)

Current law enumerates certain fees that the probate judge must charge and collect if possible for certain specified proceedings.  These fees include a fee of $10 for a proceeding regarding the disposal of an estate under $10,000 of a minor or mentally ill person.  Consistent with the above change to the types of estates that can be terminated or disposed of, the bill modifies this provision by providing that it applies to a proceeding regarding the disposal of an estate under $25,000 for a minor or incompetent person.  (R.C. 2101.16(A)(47).)

Settlement of claim of emancipated minor

Current law provides that when personal injury, damage to tangible or intangible property, or damage or loss on account of personal injury or damage to tangible property is caused to a ward by wrongful act, neglect, or default that would entitle the ward to maintain an action and recover damages for the injury, damage, or loss, and when any ward is entitled to maintain an action for damages or any other relief based on any claim or is subject to any claim to recover damages or any other relief based on any claim, the guardian of the estate of the ward may adjust and settle the claim with the advice, approval, and consent of the probate court.  In the settlement, if the ward is a minor, the parent or parents may waive all claim for damages on account of the settlement.  However, when it is proposed that the claim involved be settled for $10,000 or less, the court, upon application by any person whom the court may authorize to receive and receipt for the settlement, may authorize the settlement without the appointment of a guardian and authorize the delivery of the moneys to the natural guardian of the minor, to the person by whom the minor is maintained, or to the minor.  The court may authorize the minor or person receiving the moneys to execute a complete release on account of the receipt.  The payment must be a complete and final discharge of any such claim.

Under the bill, the above-described provisions apply if (rather than when) personal injury, damage to tangible or intangible property, or damage or loss on account of personal injury or damage to tangible or intangible property is caused to a ward by a wrongful act, neglect, or default that would entitle the ward to maintain an action and recover damages for the injury, damage, or loss.  The bill also provides that the court, upon application by any suitable person whom the court may authorize to receive and receipt for the settlement, may authorize the settlement without the appointment of a guardian and authorize the delivery of the moneys as provided in the law regarding the termination of a guardianship if (instead of when) it is proposed that a claim be settled for the net amount of $25,000 or less (instead of $10,000 or less) after payment of fees and expenses as allowed by the court.  (R.C. 2111.18.)

Savings statute

Under current law, in any action that is commenced or attempted to be commenced, if in due time a judgment for the plaintiff is reversed or if the plaintiff fails otherwise than upon the merits, the plaintiff or, if the plaintiff dies and the cause of action survives, the plaintiff's representative may commence a new action within one year after the date of the reversal of judgment or the plaintiff's failure otherwise than upon the merits or within the period of the original applicable statute of limitations, whichever occurs later.  This provision applies to any claim asserted in any pleading by a defendant.  The bill provides that these provisions do not apply to an action or proceeding to set aside an antenuptial or separation agreement that is commenced within four months after the appointment of the executor or administrator of the estate of the decendent (R.C. 2106.22, not in the bill), a will contest action (R.C. 2107.76), the vacating of an order of a probate court upon the settlement of a fiduciary's account (R.C. 2109.35, not in the bill), a hearing on the inventory of the decedent's interest in real estate located in Ohio and of the tangible and intangible personal property of the decedent that is to be administered and that has come to the executor's or administrator's possession or knowledge (R.C. 2115.16, not in the bill), actions pertaining to a revocable trust that is made irrevocable by the death of the settlor of the trust (R.C. 5806.04, not in the bill), or a proceeding against a trustee for breach of trust (R.C. 5810.05, not in the bill) (R.C. 2305.19(C) and 2107.76(B)).

Will contest actions

Current law states that no person who has received or waived the right to receive the notice of the admission of a will to probate may commence an action to contest the validity of the will more than three months after the filing of the certificate of giving notice or waiver of notice as required under R.C. 2107.19(A)(3) (R.C. 2107.76(A)). Current law also states that the savings provision under R.C. 2305.19 (described in "Savings statute" above) does not apply to an action to contest the validity of a will.  The bill removes this provision.  (R.C. 2107.76(B).)

Revocation of power of appointment when there is a termination of marriage

Current law provides that, unless the trust or separation agreement provides otherwise, if, after executing a trust in which the grantor reserves to self a power to alter, amend, revoke, or terminate the provisions of the trust, a grantor is divorced, obtains a dissolution of marriage, has the grantor's marriage annulled, or, upon actual separation from the grantor's spouse, enters into a separation agreement pursuant to which the parties intend to fully and finally settle their prospective property rights in the property of the other, whether by expected inheritance or otherwise, the spouse or former spouse of the grantor is deemed to have predeceased the grantor and any provision in the trust conferring a general or special power of appointment on the spouse or former spouse or nominating the spouse or former spouse as trustee or trust advisor is revoked.  If the grantor remarries the grantor's former spouse or if the separation agreement is terminated, the spouse cannot be deemed to have predeceased the grantor and any provision in the trust conferring a general or special power of appointment on the spouse or former spouse or nominating the spouse or former spouse as trustee or trust advisor is not revoked.  The bill adds that the termination of a marriage revokes any provision in the trust that confers any beneficial interest on the spouse or former spouse (in addition to revoking any powers of appointment or nomination as trustee or trust advisor) and that any provision in the trust that confers any beneficial interest on the spouse or former spouse is not revoked if the grantor remarries the grantor's former spouse or if the separation agreement is terminated.  (R.C. 5815.31.)

ACTION	DATE
Introduced	04-09-09

 

 

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