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As Reported by the Senate Judiciary Committee
123rd General Assembly
Regular Session
1999-2000 | Sub. H. B. No. 59 |
REPRESENTATIVES WOMERBENJAMIN-MOTTLEY-PRINGLE-SALERNO-
DePIERO-CORE-D.MILLER-JONES-
SENATOR SBLESSING-LATTA
A BILL
To amend sections 109.32, 1339.51, 1340.01, 1340.02, 1340.03, 1340.09,
1340.12, 1716.02, 1716.05, 1716.07, 1716.16, 1716.99, 2103.041,
2107.26,
2107.33, 2109.07, 2109.09, 2109.10, 2109.67, and 5103.16, to enact new section
2131.01 and section 1340.031, and
to repeal section
2131.01 of the Revised Code to revise the Probate
Laws, to change the name of the
Charitable Foundations Section of the Attorney General's office to the
Charitable Law Section, to exempt grandparents from
specified adoption requirements, and
to eliminate the
generally required bond for an administrator or executor of an estate who is
the
sole beneficiary of the estate.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 109.32, 1339.51, 1340.01, 1340.02, 1340.03, 1340.09,
1340.12, 1716.02, 1716.05, 1716.07, 1716.16, 1716.99,
2103.041,
2107.26, 2107.33, 2109.07, 2109.09, 2109.10, 2109.67, and 5103.16 be amended
and new section
2131.01 and section 1340.031 of the Revised Code be
enacted to read as follows:
Sec. 109.32. All annual filing fees obtained by the attorney general
pursuant
to section 109.31 of the Revised Code, all receipts obtained from the sale of
the charitable foundations LAW directory, and all registration
fees received by
the attorney general, bond forfeitures, awards of costs and attorney's fees,
and civil penalties assessed under Chapter 1716. of the Revised Code shall be
paid into the state treasury to the credit of the charitable
foundations LAW fund.
The charitable foundations LAW fund shall be used insofar as
its moneys are
available for the expenses of the charitable foundations LAW
section of the office
of the attorney general. The expenses of the charitable foundations
LAW section
in excess of moneys available in the charitable foundations LAW
fund shall be paid
out of regular appropriations to the office of the attorney general.
Sec. 1339.51. (A) As used in this section:
(1) "Ascertainable standard" includes a standard in a
trust instrument requiring the trustee to provide for the care,
comfort, maintenance, welfare, education, or general well-being
of the beneficiary.
(2) "Disability" means any substantial, medically
determinable impairment that can be expected to result in death
or that has lasted or can be expected to last for a continuous
period of at least twelve months, except that "disability" does
not include an impairment that is the result of abuse of alcohol
or drugs.
(3) "Political subdivision" and "state" have the same
meanings as in section 2744.01 of the Revised Code.
(4) "Supplemental services" means services specified by
rule of the department of mental health under section 5119.01 of
the Revised Code or the department of mental retardation and
developmental disabilities under section 5123.04 of the Revised
Code that are provided to an individual with a disability in
addition to services he THE INDIVIDUAL is eligible to receive
under programs
authorized by federal or state law.
(B) Any person may create a testamentary OR INTER VIVOS trust under
this
section to provide funding for supplemental services for the
benefit of another individual who meets either ANY of the
following
conditions:
(1) The individual has a physical or mental disability and
is eligible to receive services through the department of mental
retardation and developmental disabilities or a county board of
mental retardation and developmental disabilities;
(2) THE INDIVIDUAL HAS A PHYSICAL OR MENTAL DISABILITY AND IS ELIGIBLE TO
RECEIVE BENEFITS, INCLUDING MEDICAID, THROUGH THE DEPARTMENT OF HUMAN
SERVICES. THE TRUST SHALL NOT RENDER THE INDIVIDUAL
INELIGIBLE
FOR MEDICAID OR OTHER BENEFITS THROUGH THE DEPARTMENT OF HUMAN SERVICES.
(3) The individual has a mental disability and is eligible
to receive services through the department of mental health or a
board of alcohol, drug addiction, and mental health services.
The trust may confer discretion upon the trustee and may
contain specific instructions or conditions governing the
exercise of the discretion.
(C) The general division of the court of common pleas and
the probate court of the county in which the beneficiary of a
trust authorized by division (B) of this section resides or is
confined have concurrent original jurisdiction to hear and
determine actions pertaining to the trust. In any action
pertaining to the trust in a court of common pleas or probate
court and in any appeal of the action, all of the following apply
to the trial or appellate court:
(1) The court shall render determinations consistent with
the testator's or other settlor's intent in creating the trust,
as evidenced by the terms of the trust instrument.
(2) The court may order the trustee to exercise discretion
that the trust instrument confers upon him THE TRUSTEE only if
the instrument
contains specific instructions or conditions governing the
exercise of that discretion and the trustee has failed to comply
with the instructions or conditions. In issuing an order
pursuant to this division, the court shall require the trustee to
exercise his THE TRUSTEE'S discretion only in accordance with
the instructions
or conditions.
(3) The court may order the trustee OF A TESTAMENTARY
TRUST to maintain the trust
and distribute assets in accordance with rules adopted by the
director of mental health under section 5119.01 of the Revised
Code or the director of mental retardation and developmental
disabilities under section 5123.04 of the Revised Code if the
trustee has failed to comply with such rules.
(D) To the extent permitted by federal law and subject to
the provisions of division (C)(2) of this section pertaining to
the enforcement of specific instructions or conditions governing
a trustee's discretion, a trust authorized by division (B) of
this section that confers discretion upon the trustee shall not
be considered an asset or resource of the beneficiary, his THE
BENEFICIARY'S estate, or the testator's OR SETTLOR'S estate and
shall be exempt from
the
claims of creditors, political subdivisions, the state, other
governmental entities, and other claimants against the
beneficiary, his THE BENEFICIARY'S estate, or the testator's
OR SETTLOR'S estate, including
claims based on provisions of Chapters 5111., 5121., or AND
5123. of
the Revised Code and claims sought to be satisfied by way of a
civil action, subrogation, execution, garnishment, attachment,
judicial sale, or other legal process, if all of the following
apply:
(1) At the time the A TESTAMENTARY trust is created, the
TESTAMENTARY trust principal
does not exceed the maximum amount determined under division (E)
of this section;.
(2) The trust instrument contains a statement of the
testator's OR SETTLOR'S intent, or otherwise clearly evidences
his THE
TESTATOR'S OR SETTLOR'S intent,
that the beneficiary does not have authority to compel the
trustee under any circumstances to furnish the beneficiary with
minimal or other maintenance or support, to make payments from
the principal of the trust or from the income derived from the
principal, or to convert any portion of the principal into cash,
whether pursuant to an ascertainable standard specified in the
instrument or otherwise;.
(3) The testator OR SETTLOR is deceased;.
(4) The trust instrument, IF TESTAMENTARY, provides that
trust assets can be
used only to provide supplemental services, as defined by rule of
the director of mental health under section 5119.01 of the
Revised Code or the director of mental retardation and
developmental disabilities under section 5123.04 of the Revised
Code, to the beneficiary;.
(5) The trust, IF TESTAMENTARY, is maintained and assets
are distributed in
accordance with rules adopted by the director of mental health
under section 5119.01 of the Revised Code or the director of
mental retardation and developmental disabilities under section
5123.04 of the Revised Code;.
(6) The trust instrument, IF TESTAMENTARY, provides that
on the death of the
beneficiary, a portion of the remaining assets of the trust,
which shall be not less than fifty per cent of such assets, will
be deposited to the credit of the services fund for individuals
with mental illness created by section 5119.17 of the Revised
Code or the services fund for individuals with mental retardation
and developmental disabilities created by section 5123.40 of the
Revised Code.
(E) In 1994, the trust principal maximum amount for a TESTAMENTARY
trust created under this section shall be two hundred thousand dollars.
The maximum amount for a TESTAMENTARY trust created under this section
prior to the
effective date of this amendment NOVEMBER 11,
1994, may be increased to two hundred thousand
dollars.
In 1995, the maximum amount for a TESTAMENTARY trust created under this
section shall be
two hundred two thousand dollars. Each year thereafter, the maximum amount
FOR A TESTAMENTARY TRUST shall be the prior
year's amount plus two thousand dollars.
(F) This section does not limit or otherwise affect the
creation, validity, interpretation, or effect of any trust that
is not created under this section.
Sec. 1340.01. As used in sections 1340.01 to 1340.13 of
the Revised Code:
(A) "Income beneficiary" means the person to whom income
is presently payable or for whom it is accumulated for
distribution as income.
(B) "Inventory value" means the cost of property purchased
by the trustee and the market value of other property at the time
it became subject to the trust, but, in the case of property
which THAT
passes or has passed to the trust as the result of a decedent's
death, the trustee may use any value finally determined for the
purposes of an estate or inheritance tax.
(C) "Remainderman REMAINDERPERSON" means the person entitled to
principal, including income which THAT has been accumulated and
added to
principal.
(D) "Trustee" means an inter vivos or testamentary trustee
and includes an original trustee and any successor or added
trustee.
(E) "QUALIFIED BENEFICIARY" MEANS A BENEFICIARY WHO IS ENTITLED
OR ELIGIBLE TO RECEIVE A DISTRIBUTION OF INCOME OR PRINCIPAL WHETHER PRESENTLY
OR AT SOME FUTURE TIME
THAT IS PREDICATED UPON THE HAPPENING OF AN EVENT THAT IS CERTAIN.
AN EVENT THAT IS CERTAIN INCLUDES, BUT IS NOT LIMITED TO, THE
TERMINATION OF AN INTERVENING LIFE ESTATE. IF A TRUST IS SUBJECT
TO AMENDMENT, APPOINTMENT, OR REVOCATION BY THE GRANTOR, THEN ONLY THE GRANTOR
SHALL BE DEEMED TO BE A QUALIFIED BENEFICIARY.
(F) "LEGAL REPRESENTATIVE" INCLUDES, BUT IS NOT LIMITED TO, A
PARENT AS A NATURAL GUARDIAN OF A MINOR CHILD UNDER SECTION 2111.08 OF
THE REVISED CODE, AN ATTORNEY-AT-LAW, A GUARDIAN APPOINTED
PURSUANT TO COURT ORDER, INCLUDING A GUARDIAN OF THE PERSON OR A GUARDIAN
OF THE ESTATE, OR A GUARDIAN AD LITEM.
Sec. 1340.02. (A) A trust shall be administered with due
regard to the respective interests of income beneficiaries and
remaindermen REMAINDERPERSONS. A trust is so administered with
respect to the allocation of receipts and expenditures if a receipt is
credited or an expenditure is charged to income or principal or partly to
each IN ONE OF THE FOLLOWING MANNERS:
(1) In accordance with the terms of the trust instrument,
notwithstanding contrary provisions of sections 1340.01 to
1340.13 of the Revised Code;
(2) In the absence of any contrary terms of the trust
instrument, in accordance with sections 1340.01 to 1340.13 of the
Revised Code;
(3) If neither of the preceding rules of administration is
applicable,.
(B) IN EXERCISING A DISCRETIONARY POWER OF
ADMINISTRATION
REGARDING A MATTER WITHIN THE SCOPE OF SECTIONS 1340.01 TO
1340.13 OF THE REVISED
CODE, WHETHER GRANTED BY THE
TERMS OF THE TRUST INSTRUMENT OR BY THOSE SECTIONS, A TRUSTEE SHALL
ADMINISTER THE TRUST
in accordance with what is reasonable and equitable
in view of the interests of those entitled to income as well as
those entitled to principal, and in view of the manner in which
men PERSONS of ordinary prudence, discretion, and judgment would
act in the management of their own affairs.
(B)(C) If the trust instrument gives the trustee discretion
in crediting a receipt or charging an expenditure to income or
principal or partly to each, unless the terms of the trust
instrument otherwise expressly provide, the trustee shall
exercise such discretion in accordance with the principles of
sections 1340.01 to 1340.13 of the Revised Code, but in the event
of a bona fide doubt as to the applicability of sections 1340.01
to 1340.13 of the Revised Code, any allocation made by the
trustee in good faith shall be binding on all persons having any
interest in the trust NO INFERENCE OF IMPRUDENCE OR PARTIALITY ARISES
FROM THE
FACT THAT THE TRUSTEE HAS MADE AN ALLOCATION CONTRARY TO
SECTIONS 1340.01 TO 1340.13 OF THE
REVISED
CODE.
(D) A FIDUCIARY MAY
CREDIT A RECEIPT OR CHARGE AN EXPENDITURE TO INCOME OR PRINCIPAL
WITH RESPECT TO A TRUST, OR PROPERTY PASSING TO A TRUST, THAT IS
ELIGIBLE FOR A FEDERAL OR OHIO
ESTATE TAX MARITAL DEDUCTION OR ESTATE TAX CHARITABLE DEDUCTION ONLY TO THE
EXTENT
THAT THE CREDIT OF THE RECEIPT OR CHARGE OF THE EXPENDITURE WILL
NOT CAUSE THE REDUCTION OR LOSS OF THE DEDUCTION.
(E) AS USED IN THIS
SECTION:
(1) "FEDERAL ESTATE TAX CHARITABLE DEDUCTION" MEANS THE
ESTATE TAX CHARITABLE DEDUCTION ALLOWED BY SUBTITLE
B,
CHAPTER 11 OF THE
"INTERNAL
REVENUE
CODE OF 1986," 26
U.S.C.A.
2055, AS AMENDED.
(2) "FEDERAL ESTATE TAX MARITAL DEDUCTION" MEANS THE ESTATE
TAX MARITAL DEDUCTION ALLOWED BY SUBTITLE
B,
CHAPTER 11 OF THE
"INTERNAL
REVENUE
CODE OF 1986," 26
U.S.C.A.
2056, AS AMENDED.
(3) "OHIO ESTATE TAX
CHARITABLE DEDUCTION" MEANS THE ESTATE TAX CHARITABLE DEDUCTION
ALLOWED BY DIVISION (A) OF
SECTION 5731.17 OF THE REVISED
CODE.
(4) "OHIO ESTATE TAX
MARITAL DEDUCTION" MEANS THE ESTATE TAX MARITAL DEDUCTION
ALLOWED BY DIVISION (A) OF
SECTION 5731.15 OF THE REVISED
CODE.
Sec. 1340.03. (A) Income is the return in money or
property derived from the use of principal, including return as
FOLLOWS:
(1) Rent of real or personal property, including sums
received for cancellation or renewal of a lease;
(2) Interest on money lent, including sums received as
consideration for the privilege of prepayment of principal except
as provided in section 1340.06 of the Revised Code on bond
premium and bond discount;
(3) Income earned during administration of a decedent's
estate as provided in section 2109.67 of the Revised Code;
(4) Corporate distributions as provided in section 1340.05
of the Revised Code;
(5) Accrued increment on bonds or other obligations issued
at a discount as provided in section 1340.06 of the Revised Code;
(6) Receipts from business and farming operations as
provided in section 1340.07 of the Revised Code;
(7) Receipts from disposition of natural resources as
provided in sections 1340.08 and 1340.09 of the Revised Code;
(8) Receipts from other principal subject to depletion as
provided in section 1340.10 of the Revised Code;
(9) Receipts from disposition of underproductive property
as provided in section 1340.11 of the Revised Code.
(B) Principal is the property that has been set aside by
the owner or the person legally empowered so that it is held in
trust eventually to be delivered to a remainderman
REMAINDERPERSON while the return or use of the principal is in the
meantime taken or received by or held for accumulation for an income
beneficiary. Principal includes any of the following:
(1) Consideration received by the trustee on the sale or
other transfer of principal or on repayment of a loan or as a
refund or replacement or change in the form of principal;
(2) Proceeds of property taken on eminent domain
proceedings;
(3) Proceeds of insurance upon property forming part of
the principal, except proceeds of insurance upon a separate
interest of an income beneficiary;
(4) Stock dividends, receipts on liquidation of a
corporation, and other corporate distributions as provided in
section 1340.05 of the Revised Code;
(5) Receipts from the disposition of corporate securities
as provided in section 1340.06 of the Revised Code;
(6) Royalties and other receipts from disposition of
natural resources as provided in sections 1340.08 and 1340.09 of
the Revised Code;
(7) Receipts from other principal subject to depletion as
provided in section 1340.10 of the Revised Code;
(8) Any profit resulting from any change in the form of
principal except as provided in section 1340.11 of the Revised
Code on underproductive property;
(9) Receipts from disposition of underproductive property
as provided in section 1340.11 of the Revised Code;
(10) Any allowances for depreciation established under
section 1340.07 and division (A)(2) of section 1340.12 of the
Revised Code.
(C) After determining income and principal in accordance
with the terms of the trust instrument or of sections 1340.01 to
1340.13 of the Revised Code, the trustee shall charge to income
or principal expenses and other charges as provided in section
1340.12 of the Revised Code.
Sec. 1340.031. (A) NOT MORE THAN ONCE EVERY SIX MONTHS, A
QUALIFIED BENEFICIARY OR, IF A QUALIFIED
BENEFICIARY IS UNDER A LEGAL DISABILITY,
A LEGAL REPRESENTATIVE OF THE QUALIFIED BENEFICIARY
MAY REQUEST IN WRITING THAT AN INTER VIVOS TRUSTEE
FURNISH THE QUALIFIED BENEFICIARY OR LEGAL
REPRESENTATIVE A REPORT OF THE MANAGEMENT OF THE INTER VIVOS
TRUST AS PROVIDED IN THIS SECTION. WITHIN THIRTY DAYS AFTER
RECEIVING THE WRITTEN REQUEST FOR A REPORT OF THE MANAGEMENT OF
THE INTER VIVOS TRUST, THE INTER VIVOS TRUSTEE SHALL FURNISH THE
QUALIFIED BENEFICIARY OR LEGAL
REPRESENTATIVE THAT MADE THE REQUEST A REPORT THAT IS CURRENT TO
WITHIN FIVE MONTHS PRIOR TO THE DATE OF THE REQUEST AND THAT SHOWS
AN INVENTORY OF THE TRUST PROPERTY AND THE RECEIPTS CREDITED AND EXPENDITURES
CHARGED TO INCOME OR
PRINCIPAL WITH RESPECT TO THE INTER VIVOS TRUST FOR THE TWO YEARS PRIOR TO THE
PREPARATION OF THE REPORT. IF THE INTER VIVOS TRUSTEE
DOES NOT COMPLY
WITH THE REQUEST FOR A REPORT UNDER THIS SECTION, THE QUALIFIED
BENEFICIARY OR LEGAL REPRESENTATIVE THAT
MADE THE REQUEST MAY FILE AN APPROPRIATE ACTION IN A COURT OF
COMPETENT JURISDICTION TO COMPEL THE INTER VIVOS TRUSTEE TO
FURNISH THE REPORT.
(B) A CURRENT REPORT FURNISHED BY AN INTER VIVOS TRUSTEE UNDER
THIS SECTION OR DURING THE USUAL COURSE OF BUSINESS HAS BINDING LEGAL EFFECT
REGARDING MATTERS DESCRIBED OR DISCLOSED IN THE REPORT ON THE QUALIFIED
BENEFICIARY WHO RECEIVED THE REPORT, ON THE
LEGAL REPRESENTATIVE WHO RECEIVED THE REPORT ON BEHALF OF THE
QUALIFIED BENEFICIARY WHO IS UNDER LEGAL DISABILITY, AND ON THE
HEIRS AND ASSIGNS OF THE QUALIFIED BENEFICIARY WHO RECEIVED THE
REPORT UNLESS, NOTWITHSTANDING SECTION 2305.22 OF THE REVISED
CODE, THE QUALIFIED BENEFICIARY, THE LEGAL REPRESENTATIVE OF
THE QUALIFIED BENEFICIARY, OR ANY OF THE HEIRS OR ASSIGNS OF THE
QUALIFIED BENEFICIARY INSTITUTES AN ACTION REGARDING MATTERS DESCRIBED OR
DISCLOSED IN THE REPORT AGAINST THE INTER VIVOS
TRUSTEE WITHIN TWO YEARS FROM THE DATE THE REPORT IS FURNISHED
TO THE QUALIFIED BENEFICIARY OR LEGAL REPRESENTATIVE OF THE QUALIFIED
BENEFICIARY.
(C) NO PROVISION IN THIS SECTION ELIMINATES ANY OTHER RIGHTS OR
CAUSES OF ACTION THAT A QUALIFIED BENEFICIARY OF AN INTER VIVOS TRUST, A LEGAL
REPRESENTATIVE OF A QUALIFIED BENEFICIARY OF AN
INTER VIVOS TRUST, OR ANY OF THE HEIRS OR ASSIGNS OF A QUALIFIED BENEFICIARY
OF AN INTER VIVOS TRUST MAY HAVE AGAINST THE INTER VIVOS TRUSTEE UNDER
ANY OTHER SECTION OF THE REVISED CODE.
Sec. 1340.09. If any part of the principal consists of land from which
merchantable timber may be removed, the receipts from taking the timber from
the land shall be allocated in accordance with division
(A)(3)(B) of section
1340.02 of the Revised Code.
Sec. 1340.12. (A) The following charges shall be made
against income:
(1) Ordinary expenses incurred in connection with the
administration, management, or preservation of the trust
property, including regularly recurring taxes assessed against
any portion of the principal, water rates, premiums on insurance
taken upon the interests of the income beneficiary, remainderman
REMAINDERPERSON, or trustee, interest paid by the trustee, and ordinary
repairs;
(2) A reasonable allowance for depreciation on property
subject to depreciation under generally accepted accounting
principles, but no allowance shall be made for depreciation of
that portion of any real property used by a beneficiary as a
residence or for depreciation of any property held by the trustee
on the effective date of this section OCTOBER 20,
1987, for which the trustee is
not then making an allowance for depreciation;
(3) Not less than half of court costs, attorney's fees,
and other fees on periodic judicial accounting, unless the court
directs otherwise;
(4) Court costs, attorney's fees, and other fees on other
accountings or judicial proceedings if the matter primarily
concerns the income interest, unless the court directs otherwise;
(5) Not less than half of the trustee's regular
compensation, whether based on a percentage of principal or
income, and all expenses reasonably incurred for current
management of principal and application of income, unless a court
otherwise directs;
(6) Any tax levied upon receipts defined as income under
sections 1340.01 to 1340.13 of the Revised Code or the trust
instrument and payable by the trustee.
(B) If charges against income are of unusual amount, the
trustee may, by means of reserves or other reasonable
means, MAY charge
them over a reasonable period of time and withhold from
distribution sufficient sums to regularize distributions.
(C) The following charges shall be made against principal:
(1) Trustee's compensation not chargeable to income under
divisions (A)(4) and (5) of this section, special compensation of
trustees, expenses reasonably incurred in connection with
principal, court costs and attorney's fees primarily concerning
matters of principal, and trustee's compensation computed on
principal as an acceptance, distribution, or termination fee;
(2) Charges not provided for in division (A) of this
section, including the cost of investing and reinvesting
principal; the payment on principal of an indebtedness, including
a mortgage amortized by periodic payments of principal; expenses
for preparation of property for rental or sale; and, unless the
court directs otherwise, expenses incurred in maintaining or
defending any action to construe the trust or, TO protect
it THE TRUST or the
TRUST property, or TO assure the title of any trust
property;
(3) Extraordinary repairs or expenses incurred in making a
capital improvement to principal, including special assessments,
but a trustee may establish an allowance for depreciation out of
income to the extent permitted by division (A)(2) of this section
and by section 1340.07 of the Revised Code;
(4) Any tax levied upon profit, gain, or other receipts
allocated to principal, notwithstanding denomination of the tax as
an income tax by the taxing authority;
(5) If an estate or inheritance tax is levied in WITH respect
of TO a trust in which both an income beneficiary and a
remainderman
REMAINDERPERSON have an interest, any amount apportioned to the trust,
including
penalties, even though the income beneficiary also has rights in
the principal.
(D) Regularly recurring charges payable from income shall
be apportioned to the same extent and in the same manner that
income is apportioned under section 1340.04 of the Revised Code.
Sec. 1716.02. (A) Every charitable organization, except
those exempted under section 1716.03 of the Revised Code, that
intends to solicit contributions in this state by any means or
have contributions solicited in this state on its behalf by any
other person, charitable organization, commercial co-venturer, or
professional solicitor, or that participates in a charitable
sales promotion, prior to engaging in any of these activities and
annually thereafter, shall file a registration statement with the
attorney general upon a form prescribed by him THE ATTORNEY
GENERAL. Each chapter, branch, or affiliate of a charitable organization
that is required to file a registration statement under this section
either shall file a separate registration statement or report the
necessary information to its parent charitable organization that
then shall file a consolidated registration statement. The
annual registration statement shall be refiled on or before the
fifteenth day of the fifth calendar month after the close of each
fiscal year in which the charitable organization solicited in
this state, or by the date of any applicable extension of the
federal filing date, whichever is later. No charitable
organization that is required to register under this chapter
prior to registration, shall solicit contributions in this state
by any means, have contributions solicited in this state on its
behalf by any other person, charitable organization, commercial
co-venturer, or professional solicitor, or participate in a
charitable sales promotion.
(B) The registration statement shall be signed and sworn
to under penalties of perjury by the treasurer or chief fiscal
officer of the charitable organization and shall contain the
following information:
(1) The name of the charitable organization, the purpose
for which it is organized, and the name or names under which it
intends to solicit contributions;
(2) The address and telephone number of the principal
place of business of the charitable organization and the address
and telephone number of every office, chapter, branch, or
affiliate of the charitable organization located in this state
or, if the charitable organization does not maintain an office in
this state, the name, address, and telephone number of the person
that has custody of its financial records;
(3) The names and addresses of the officers, directors,
trustees, and executive personnel of the charitable organization;
(4) The annual financial report of the charitable
organization for the immediately preceding fiscal year as
required under section 1716.04 of the Revised Code;
(5) The last day of the fiscal year for the charitable
organization;
(6) A statement of whether the charitable organization is
registered with or otherwise authorized by any other governmental
authority in this state or another state to solicit
contributions;
(7) A statement of whether the charitable organization has
had its registration or authority denied, suspended, revoked, or
enjoined by any court or other governmental authority in this
state or another state;
(8) A statement of whether the charitable organization
intends to solicit contributions from the public directly by
using its own resources or to have solicitations made on its
behalf through the use of another charitable organization,
fund-raising counsel, professional solicitors, or commercial
co-venturers;
(9) The names, addresses, and the telephone numbers of any
other charitable organization, fund-raising counsel, professional
solicitors, and commercial co-venturers who act or will act on
behalf of the charitable organization, together with a statement
setting forth the specific terms of the arrangements for
salaries, bonuses, commissions, expenses, or other remunerations
to be paid the other charitable organization, fund-raising
counsel, professional solicitors, and commercial co-venturers.
If any of the information required by division (B)(9) of this
section is not available at the time of registration, that
information shall be submitted to the attorney general at a later
date but before any solicitation occurs.
(10) The charitable purpose or purposes for which the
contributions to be solicited will be used;
(11) The names, addresses, and telephone numbers of the
persons within the charitable organization that will have final
responsibility for the custody of the contributions;
(12) The names of the persons within the charitable
organization that will be responsible for the final distribution
of the contributions;
(13) The period of time during which, and the counties in
which, the solicitation is planned to be conducted;
(14) A schedule of the activities carried on by the
charitable organization in the performance of its purposes;
(15) Any other information that the attorney general may,
by rule, require.
(C)(1) With the initial registration only, every
charitable organization that is required to register under this
chapter also shall file with the attorney general the following:
(a) A copy of the current charter, articles of
incorporation, agreement of association, instrument of trust,
constitution, or other organizational instrument, and a copy of
the bylaws of the charitable organization;
(b) A statement setting forth the place where and the date
when the charitable organization was legally established, the
form of its organization, and its tax exempt status, with a copy
of its federal tax exemption determination letter.
(2)(a) With the next annual registration statement filed
after its adoption, the charitable organization shall file with
the attorney general a copy of any amendment to its
organizational instrument as specified in division (C)(1)(a) of
this section and a copy of any amendment to its bylaws.
(b) Within thirty days after its receipt, the charitable
organization shall file with the attorney general a copy of any
federal tax exemption determination letter or any correspondence
rescinding its tax exempt status that is received after the
initial registration. Not later than thirty days after being
notified by the internal revenue service of any challenge to or
investigation of its continued entitlement to federal tax
exemption, the charitable organization shall notify the attorney
general of this fact.
(D)(1) Except as otherwise provided in division (D)(2) of
this section, every charitable organization that is required to
register under this chapter shall pay the following fees with
each registration:
(a) Fifty dollars, if the contributions received for the
last calendar or fiscal year were five thousand dollars or more
but less than twenty-five thousand dollars;
(b) One hundred dollars, if the contributions received for
the last calendar or fiscal year were twenty-five thousand
dollars or more but less than fifty thousand dollars;
(c) Two hundred dollars, if the contributions received for
the last calendar or fiscal year were fifty thousand dollars or
more.
(2) A charitable organization that is required to register
under this chapter and whose contributions received for the last
calendar or fiscal year were less than five thousand dollars
shall not pay any registration fee.
(3) The amount of registration fees that a charitable
organization is required to pay under division (D)(1) of this
section shall be based on the amount of contributions that it
receives from persons in this state. If, for any reporting year,
a charitable organization cannot determine from its records the
exact amount of contributions it received from persons in this
state, it shall compute the amount of the registration fee upon
the estimated amount of contributions it received from persons in
this state, with the estimated amount to be explained in writing
at the time the registration fee is paid. At the request of the
attorney general, the charitable organization shall substantiate
the estimated amount of contributions it received from persons in
this state.
(4) All registration fees shall be paid into the state
treasury to the credit of the charitable foundations LAW fund
established under section 109.32 of the Revised Code.
Sec. 1716.05. (A) No person shall act as a fund-raising
counsel unless he THE PERSON first has complied with the
requirements of this chapter and any rules adopted under this chapter.
(B) Any fund-raising counsel that at any time has custody
of contributions from a solicitation shall do all of the
following:
(1) Register with the attorney general. Applications for
registration or renewal of registration shall be in writing,
under oath, and in the form prescribed by the attorney general,
and shall be accompanied by a fee in the amount of two hundred
dollars. Any corporation, partnership, association, or other
entity that intends to act as a fund-raising counsel may register
for and pay a single fee of two hundred dollars on behalf of all
its members, officers, employees, and agents. In that case, the
names and addresses of all the officers, employees, and agents of
the fund-raising counsel and all other persons with whom the
fund-raising counsel has contracted to work under its direction
shall be listed in the application. The application shall
contain any other information that the attorney general may
require. The registration or renewal of registration shall be
for a period of one year or part of one year and shall expire on
the thirty-first day of March of each year. All fees prescribed
in this division shall be paid into the state treasury to the
credit of the charitable foundations LAW fund established under
section 109.32 of the Revised Code.
(2) At the time of making an application for registration
or renewal of registration, file with and have approved by the
attorney general a bond in which the fund-raising counsel shall
be the principal obligor, in the sum of twenty-five thousand
dollars, with one or more sureties authorized to do business in
this state. The fund-raising counsel shall maintain the bond in
effect as long as the registration is in effect; however, the
liability of the surety under the bond shall not exceed an
all-time aggregate liability of twenty-five thousand dollars.
The bond, which may be in the form of a rider to a larger blanket
liability bond, shall run to the state and to any person who may
have a cause of action against the principal obligor of the bond
for any liability arising out of a violation by the obligor of
any provision of this chapter or any rule adopted pursuant to
this chapter.
(3) Not later than ninety days after a solicitation
campaign has been completed and on the anniversary of the
commencement of a solicitation campaign lasting more than one
year, furnish an accounting of all contributions collected and
expenses paid, to the charitable organization with which the
fund-raising counsel has contracted. The accounting shall be in
writing and shall be retained by the charitable organization for
three years. The fund-raising counsel shall file a copy of the
accounting with the attorney general not later than seven days
after it is furnished to the charitable organization.
(4) Not later than two days after receipt of each
contribution, deposit the entire amount of the contribution in an
account at a bank or other federally insured financial
institution which shall be in the name of the charitable
organization with which the fund-raising counsel has contracted.
Each contribution collected by the fund-raising counsel shall be
solely in the name of that charitable organization. The
charitable organization shall have sole control of all
withdrawals from the account and the fund-raising counsel shall
not be given the authority to withdraw any deposited funds from
the account.
(5) During each solicitation campaign and for not less
than three years after its completion, maintain the following
records that shall be made available to the attorney general upon
his THE ATTORNEY GENERAL'S request:
(a) A record of each contribution that at any time is in
the custody of the fund-raising counsel, including the name and
address of each contributor and the date and amount of the
contribution, provided that the attorney general shall not
disclose that information except to the extent necessary for
investigative or law enforcement purposes;
(b) The location of each bank or financial institution in
which the fund-raising counsel has deposited revenue from the
solicitation campaign and the account number of each account in
which the deposits were made.
(C) Unless otherwise provided in this section, any change
in any information filed with the attorney general pursuant to
this section shall be reported in writing to the attorney general
within seven days after the change occurs.
(D) No person shall serve as a fund-raising counsel, or be
a member, officer, employee, or agent of any fund-raising
counsel, who has been convicted in the last five years of either
of the following:
(1) Any violation of this chapter or any rule adopted
under this chapter, or of any charitable solicitation legislation
or regulation of a political subdivision of this state or
charitable solicitation law of any other jurisdiction that is
similar to this chapter;
(2) A felony in this or another state.
(E) The information provided under this section to the
attorney general by a fund-raising counsel shall be included in
the reports and files required to be compiled and maintained by
the attorney general pursuant to divisions (E) and (F) of section
1716.08 of the Revised Code.
Sec. 1716.07. (A) No professional solicitor shall engage
in any solicitation unless it has complied with the requirements
of this chapter and any rules adopted under this chapter.
(B) Every professional solicitor, before engaging in any
solicitation, shall register with the attorney general.
Applications for registration or renewal of registration shall be
in writing, under oath, and in the form prescribed by the
attorney general, and shall be accompanied by a fee in the amount
of two hundred dollars. Any corporation, partnership,
association, or other entity that intends to act as a
professional solicitor may register for and pay a single fee of
two hundred dollars on behalf of all its members, officers,
employees, agents, and solicitors. In that case, the names and
addresses of all the officers, employees, and agents of the
professional solicitor and all other persons with whom the
professional solicitor has contracted to work under its
direction, including solicitors, shall be listed in the
application or furnished to the attorney general within five days
of the date of employment or contractual arrangement. The
application shall contain any other information that the attorney
general may require. The registration shall be for a period of
one year or part of one year and shall expire on the thirty-first
day of March of each year. Upon application and payment of the
fee specified in this division and filing of the bond prescribed
in division (C) of this section, the registration may be renewed
for additional one-year periods. All fees prescribed in this
division shall be paid into the state treasury to the credit of
the charitable foundations LAW fund established under section
109.32
of the Revised Code.
(C) At the time of making an application for registration
or renewal of registration, the professional solicitor shall file
with and have approved by the attorney general a bond in which
the professional solicitor shall be the principal obligor, in the
sum of twenty-five thousand dollars, with one or more sureties
authorized to do business in this state. The professional
solicitor shall maintain the bond in effect as long as the
registration is in effect; however, the liability of the surety
under the bond shall not exceed an all-time aggregate liability
of twenty-five thousand dollars. The bond, which may be in the
form of a rider to a larger blanket liability bond, shall run to
the state and to any person who may have a cause of action
against the principal obligor of the bond for any liability
arising out of a violation by the obligor of any provision of
this chapter or any rule adopted pursuant to this chapter.
(D)(1) Prior to the commencement of any solicitation, the
professional solicitor shall file all of the following with the
attorney general:
(a) A completed document called "Solicitation Notice" upon
a form prescribed by the attorney general and containing all of
the information specified in division (D)(2) of this section;
(b) A copy of the contract described in division (A) of
section 1716.08 of the Revised Code;
(c) A sworn statement by the charitable organization on
whose behalf the professional solicitor is acting certifying that
the solicitation notice and any accompanying material are true
and correct to the best of its knowledge.
(2) The solicitation notice shall include all of the
following:
(a) The fund-raising methods to be used;
(b) The projected dates when the solicitation will
commence and terminate;
(c) The location and telephone number from where the
solicitation will be conducted if it will be conducted by
telephone;
(d) The name and residence address of each person
responsible for directing and supervising the conduct of the
solicitation campaign;
(e) A statement of whether the professional solicitor will
at any time have custody of any contributions;
(f) A full and fair description of the charitable program
for which the solicitation campaign is being carried out;
(g) The written and signed consent of every charitable
organization on whose behalf the professional solicitor will be
soliciting contributions or whose name will be mentioned during
the solicitation.
(E) Not later than ninety days after a solicitation
campaign has been completed and on the anniversary of the
commencement of a solicitation campaign lasting more than one
year, the professional solicitor shall provide to the charitable
organization and file with the attorney general a financial
report of the campaign, including the gross revenue received and
an itemization of all expenses incurred. The report shall be
completed on a form prescribed by the attorney general and signed
by an authorized official of the professional solicitor who shall
certify under oath that the report is true and correct.
(F) Each contribution collected by or in the custody of
the professional solicitor shall be solely in the name of the
charitable organization on whose behalf the contribution was
solicited. Not later than two days after receipt of each
contribution, the professional solicitor shall deposit the entire
amount of the contribution in an account at a bank or other
federally insured financial institution, which shall be in the
name of that charitable organization. The charitable
organization shall have sole control of all withdrawals from the
account and the professional solicitor shall not be given the
authority to withdraw any deposited funds from the account.
(G)(1) During each solicitation campaign and for not less
than three years after its completion, the professional solicitor
shall maintain the following records:
(a) The name and, if known to the professional solicitor,
the address and telephone number of each contributor and the date
and amount of the contribution, provided that the attorney
general shall not disclose that information except to the extent
necessary for investigative or law enforcement purposes;
(b) The name and residence address of each employee,
agent, and any other person, however designated, who is involved
in the solicitation, the amount of compensation paid to each, and
the dates on which the payments were made;
(c) A record of all contributions that at any time are in
the custody of the professional solicitor;
(d) A record of all expenses incurred by the professional
solicitor for the payment of which the professional solicitor is
liable;
(e) A record of all expenses incurred by the professional
solicitor for the payment of which the charitable organization is
liable;
(f) The location of each bank or financial institution in
which the professional solicitor has deposited revenue from the
solicitation campaign and the account number of each account in
which the deposits were made;
(g) A copy of each pitch sheet or solicitation script used
during the solicitation campaign;
(h) If a refund of a contribution has been requested, the
name and address of each person requesting the refund, and if a
refund was made, its amount and the date it was made.
(i) Any other record of such information as the attorney
general may require.
(2) If the professional solicitor sells tickets to any
event and represents that the tickets will be donated for use by
another person, the professional solicitor also shall maintain
for the same period as specified in division (G)(1) of this
section the following records:
(a) The name and address of each contributor that
purchases or donates tickets and the number of tickets purchased
or donated by the contributor;
(b) The name and address of each organization that
receives the donated tickets for the use of others, and the
number of tickets received by the organization.
(3) Any of the records described in divisions (G)(1) and
(2) of this section shall be made available to the attorney
general upon his THE ATTORNEY GENERAL'S request and shall be
furnished to him THE ATTORNEY GENERAL within ten days of the
request.
(H) Unless otherwise provided in this section or section
1716.08 of the Revised Code, any change in any information filed
with the attorney general pursuant to this section and section
1716.08 of the Revised Code shall be reported in writing to the
attorney general within seven days after the change occurs.
(I) No person shall serve as a professional solicitor, or
be a member, officer, employee, or agent of any professional
solicitor, who has been convicted in the last five years of
either of the following:
(1) Any violation of this chapter or any rule adopted
under this chapter, or of any charitable solicitation legislation
or regulation of a political subdivision of this state or
charitable solicitation law of any other jurisdiction that is
similar to this chapter;
(2) A felony in this or another state.
Sec. 1716.16. (A) In addition to other remedies
authorized by law, the attorney general may bring a civil action
to enforce this chapter or any rule adopted under this chapter.
The attorney general is not required to use any procedure
prescribed in Chapter 119. of the Revised Code prior to
exercising any remedy set forth in this section.
(B) Upon a finding that any person has engaged or is
engaging in any act or practice in violation of this chapter or
any rule adopted under this chapter, a court may make any
necessary order or enter a judgment including, but not limited
to, an injunction, restitution, or an award of reasonable
attorney's fees and costs of investigation and litigation, and
may award to the state a civil penalty of not more than ten
thousand dollars for each violation of this chapter or rule. In
seeking injunctive relief, the attorney general shall not be
required to establish irreparable harm but only shall establish a
violation of a provision of this chapter or a rule adopted under
this chapter or that the requested order promotes the public
interest.
(C) In any case in which the attorney general has
authority to institute an action or proceeding under this
chapter, he THE ATTORNEY GENERAL may accept an assurance of
discontinuance of any method, act, or practice that is in violation of this
chapter or any rule adopted under it, from any person alleged to be engaged
in or to have engaged in the unlawful method, act, or practice.
The assurance may include a stipulation for the voluntary payment
by the person of the costs of investigation, or of an amount to
be held in escrow pending the outcome of any action or as
restitution to any aggreived AGGRIEVED person or both. The
assurance of discontinuance shall be in writing and shall be
filed with the court of common pleas of Franklin county. Any
evidence of a violation of the assurance of discontinuance shall
be prima-facie evidence of a violation of this chapter or any
rule adopted under it in any subsequent action or proceeding
brought by the attorney general. Any matter that has been closed
by the acceptance of an assurance of discontinuance may at any
time be reopened by the attorney general for further proceedings
in the public interest.
(D) In addition to any other sanction imposed by law, any
charitable organization, fund-raising counsel, professional
solicitor, commercial co-venturer, or any of their agents, or any
other person that violates the terms of an assurance of
discontinuance, an injunction, or any other order or judgment
entered by a court under this section, shall forfeit and pay to
the state a civil penalty of not more than ten thousand dollars
for each violation that may be recovered in a civil action
brought by the attorney general. Each violation shall be a
separate offense, except that in the case of a violation through
continuing failure to obey, or neglect in obeying, the order,
each day of continuance of the failure or neglect shall be
considered a separate offense.
(E) The civil penalties assessed under division (B) or (D)
of this section or division (F) or (G) of section 1716.15 of the
Revised Code shall be paid into the state treasury to the credit
of the charitable foundations LAW fund established under section
109.32 of the Revised Code.
Sec. 1716.99. (A) Whoever violates sections 1716.02 to
1716.17 of the Revised Code or any rule adopted pursuant to those
sections is guilty of solicitation fraud, a misdemeanor of the
first degree.
(B) Each occurrence of a solicitation of a contribution
from any person in violation of sections 1716.02 to 1716.17 of
the Revised Code or any rule adopted under those sections is
considered a separate offense of solicitation fraud.
(C) Any person who is found guilty of solicitation fraud
shall forfeit the bond described in
section 1716.05 or 1716.07 of the Revised Code to the state
treasury to the credit of the charitable foundations LAW fund
established under section 109.32 of the Revised Code and shall be
prohibited from registering with the attorney general or from
serving as a fund-raising counsel or professional solicitor in
this state for a period of five years after his conviction.
Sec. 2103.041. In any action involving the judicical
JUDICIAL sale of real property for the purpose of satisfying the
claims of creditors of an owner of an interest in the property,
the spouse of the owner may be made a party to the action, and the
dower interest of the spouse, whether inchoate or otherwise, may
be subjected to the sale without the consent of the spouse. The
court shall determine the present value and priority of the dower
interest, using the American experience table of mortality as the
basis for determining the value, IN ACCORDANCE WITH SECTION 2131.01 OF
THE REVISED CODE and shall award the spouse a sum
of money equal to the present value of the dower interest, to be
paid out of the proceeds of the sale according to the priority of
the interest. To the extent that the owner and his THE OWNER'S
spouse are
both liable for the indebtedness, the dower interest of the
spouse is subordinate to the claims of their common creditors.
Sec. 2107.26. When an original will is lost, spoliated, or destroyed
subsequent to BEFORE OR AFTER the death of a testator, or
before the death of such testator if
the testator's lack of knowledge of such loss, spoliation, or destruction
can be proved by clear and convincing testimony, or after he became incapable
of making a will by reason of insanity, and such will cannot be produced in
the probate court in as complete a manner as the originals of last wills and
testaments which are actually produced therein for probate, the
PROBATE court may SHALL
admit such THE lost, spoliated, or destroyed will to
probate, if such court is
satisfied the will was executed according to the law in force at the time of
its execution and not revoked at the death of the testator
BOTH OF THE FOLLOWING APPLY:
(A) THE PROPONENT OF THE
WILL ESTABLISHES BY CLEAR AND CONVINCING EVIDENCE BOTH OF THE
FOLLOWING:
(1) THE WILL WAS EXECUTED WITH THE FORMALITIES
REQUIRED AT THE TIME OF EXECUTION BY THE JURISDICTION IN WHICH IT
WAS EXECUTED.
(2) THE CONTENTS OF THE WILL.
(B) NO PERSON OPPOSING
THE ADMISSION OF THE WILL TO PROBATE ESTABLISHES BY A
PREPONDERANCE OF THE EVIDENCE THAT THE TESTATOR HAD REVOKED THE
WILL.
Sec. 2107.33. (A) A will shall be revoked by IN THE FOLLOWING
MANNERS:
(1) BY the testator
by tearing, canceling, obliterating, or destroying it with the
intention of revoking it, or by;
(2) BY some person, AT THE REQUEST OF THE TESTATOR AND
in the testator's
presence, or by
TEARING, CANCELING, OBLITERATING, OR DESTROYING IT WITH THE INTENTION OF
REVOKING IT;
(3) BY SOME PERSON TEARING, CANCELING, OBLITERATING, OR
DESTROYING IT PURSUANT TO
the testator's express written direction, or by;
(4) BY
some other written will or codicil, executed as prescribed by
sections 2107.01 to 2107.62 of the Revised Code, or by THIS
CHAPTER;
(5) BY some other
writing that is signed, attested, and subscribed in the manner
provided by those sections THIS CHAPTER. A
(B) A will that has been declared valid
and is in the possession of a probate judge may also MAY be
revoked
according to division (C) of section 2107.084 of the Revised
Code.
(B)(C) If a testator removes a will that has been declared
valid and is in the possession of a probate judge pursuant to
section 2107.084 of the Revised Code from the possession of the
judge, the declaration of validity that was rendered no longer
has any effect.
(C)(D) If after executing a will, a testator is divorced,
obtains a dissolution of marriage, has his THE TESTATOR'S
marriage annulled, or,
upon actual separation from his THE TESTATOR'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, any
disposition or appointment of property made by the will to the
former spouse or to a trust with powers created by or available
to the former spouse, any provision in the will conferring a
general or special power of appointment on the former spouse, and
any nomination in the will of the former spouse as executor,
trustee, or guardian, shall be revoked unless the will expressly
provides otherwise.
(D)(E) Property prevented from passing to a former spouse or
to a trust with powers created by or available to the former
spouse because of revocation by this section shall pass as if the
former spouse failed to survive the decedent, and other
provisions conferring some power or office on the former spouse
shall be interpreted as if the spouse failed to survive the
decedent. If provisions are revoked solely by this section, they
shall be deemed to be revived by the testator's remarriage with
the former spouse or upon the termination of a separation
agreement executed by them.
(E)(F) A bond, agreement, or covenant made by a testator, for
a valuable consideration, to convey property previously devised
or bequeathed in a will, does not revoke the devise or bequest.
The property passes by the devise or bequest, subject to the
remedies on the bond, agreement, or covenant, for a specific
performance or otherwise, against the devisees or legatees, that
might be had by law against the heirs of the testator, or his THE
TESTATOR'S
next of kin, if the property had descended to them.
(F)(G) A TESTATOR'S REVOCATION OF A WILL
SHALL BE VALID ONLY IF THE TESTATOR, AT THE TIME OF THE
REVOCATION, HAS THE SAME CAPACITY AS THE LAW REQUIRES FOR THE
EXECUTION OF A WILL.
(H) As used in this section:
(1) "Trust with powers created by or available to the
former spouse" means a trust that is revocable by the former
spouse, with respect to which the former spouse has a power of
withdrawal, or with respect to which the former spouse may take a
distribution that is not subject to an ascertainable standard but
does not mean a trust in which those powers of the former spouse
are revoked by section 1339.62 of the Revised Code or similar
provisions in the law of another state.
(2) "Ascertainable standard" means a standard that is
related to a trust beneficiary's health, maintenance, support, or
education.
Sec. 2109.07. (A) The bond required of an administrator by
section 2109.04 of the Revised Code shall not be required IN EITHER OF THE
FOLLOWING CASES:
(1) IT SHALL NOT BE REQUIRED of a
surviving spouse to administer the deceased spouse's estate,
if the surviving spouse is entitled to the entire net proceeds
of the estate. The
(2) IT SHALL NOT BE REQUIRED OF AN ADMINISTRATOR TO ADMINISTER AN
ESTATE IF THE ADMINISTRATOR IS THE NEXT OF KIN AND IF
THE ADMINISTRATOR IS ENTITLED TO THE ENTIRE
NET PROCEEDS OF THE ESTATE.
(B) THE bond otherwise required by section 2109.04 of
the Revised Code of an administrator shall be conditioned as
follows:
(A)(1) To file with the probate court within
the
time required by section 2115.02 of the Revised Code an
inventory of all tangible and
intangible personal property of the
deceased that is to be administered and that
comes to the
administrator's possession or knowledge and an inventory of the
deceased's interest in real estate located in
this state;
(B)(2) To administer and distribute according to law all
tangible and
intangible personal
property of the deceased, the
proceeds of any action for wrongful death or of any settlement,
with or without suit, of a wrongful death claim, and the proceeds
of all real estate in which the deceased had an interest, that
is located in this state, and that is sold, when the
property or proceeds have come to the possession of the
administrator or to the possession of a person for
the administrator;
(C)(3) To render a just and true account of the
administrator's administration at the times required by section 2109.30 of
the Revised Code;
(D)(4) To deliver the letters of administration into court if
a will of the deceased is proved and allowed.
Sec. 2109.09. (A) The bond required OF AN EXECUTOR by
section 2109.04 of the Revised Code of an
executor SHALL NOT BE REQUIRED OF THE EXECUTOR TO ADMINISTER AN ESTATE
IN ACCORDANCE WITH THE WILL OF THE TESTATOR IF THE EXECUTOR IS THE NEXT
OF KIN AND IF THE EXECUTOR IS ENTITLED TO THE ENTIRE NET PROCEEDS OF THE
ESTATE.
(B) THE BOND OTHERWISE REQUIRED OF AN EXECUTOR BY SECTION 2109.04
of the Revised Code shall be conditioned as follows:
(A)(1) To file with the probate court within
the
time required by
section 2115.02 of the Revised Code an inventory of all
the tangible and intangible personal
property of the testator that is to be administered and
that comes to the executor's possession
or knowledge and an inventory of the testator's interest in real estate
located in this state;
(B)(2) To administer and distribute according to law and the
will of the
testator all the testator's
tangible and intangible personal property, the
proceeds of any action for wrongful death or of any settlement, with or
without suit, of a wrongful death claim, and the proceeds of all
real
estate in which the testator had an interest, that is located in this
state, and that is sold, when the property or proceeds have
come to the possession of the executor or to the possession
of another person for the executor;
(C)(3) To render a just and true account of the executor's
administration at the times
required by section 2109.30 of the Revised Code.
Sec. 2109.10. If an executor or administrator is sole
residuary legatee or distributee AND IF DIVISION (A) OF SECTION
2109.07 OR DIVISION (A) OF SECTION 2109.09 of the Revised Code DOES NOT APPLY,
instead of giving the bond
prescribed by section 2109.04 of the Revised Code, he THE EXECUTOR
OR ADMINISTRATOR may give a bond to the satisfaction of the probate court
conditioned as follows:
(A) To pay the costs of administration and all the debts
and legacies of the decedent to the extent of the assets of the
estate;
(B) If executor THERE IS A WILL, to pay over such
THE testator's estate to the
person entitled thereto in case TO THE TESTATOR'S ESTATE IF the
will is set aside;
(C) If administrator THERE IS NO WILL OFFERED AT THE OPENING OF THE
ESTATE, to pay over such THE testator's estate
to the person entitled thereto in case TO THE TESTATOR'S ESTATE
IF a will is probated after
his THE ADMINISTRATOR'S INITIAL appointment.
The giving of such bond shall not discharge the lien on the
decedent's real estate for the payment of his THE DECEDENT'S
debts, except that part which has been lawfully sold by the executor or
administrator.
Sec. 2109.67. (A) Unless the will otherwise provides and
subject to division (B) of this section, all expenses incurred in
connection with the settlement of a decedent's estate, including
debts, funeral expenses, estate taxes, penalties concerning
taxes, allowances to a surviving spouse, minor children, or both,
including, but not limited to, the allowance for support under
section 2106.13 of the Revised Code, fees of attorneys and
personal representatives, and court costs shall be charged
against the principal of the estate.
(B) Unless the will otherwise provides, income from the
assets of a decedent's estate after the death of the testator and
before distribution, including income from property used to
discharge liabilities, shall be determined in accordance with the
rules applicable to a trustee under Chapter 1340. of the Revised
Code and distributed as follows:
(1) To specific legatees and devisees, the income from the
property bequeathed or devised to them respectively, less
property taxes, ordinary repairs, interest, and other expenses of
management and operation of the property, and an appropriate
portion of taxes imposed on income, excluding taxes on capital
gains, income in respect of a decedent, and other items allocable
to principal, which accrue during the period of administration;
(2)(a) To all other legatees, except as provided in division
(B)(3)(2)(b) of this section, the balance of the income, less
the balance of property taxes, ordinary repairs, interest, and other
expenses of management and operation of all property from which
the estate is entitled to income, and taxes imposed on income,
excluding taxes on capital gains, income in respect of a
decedent, and other items allocable to principal, which accrue
during the period of administration, in proportion to their
respective interests in the undistributed assets of the estate,
computed at times of distribution on the basis of inventory
value;
(3)(b) A legatee, other than the testator's surviving
spouse, of a pecuniary legacy not in trust shall not be paid
interest on the legacy, and the legacy shall not be entitled to
receive any part of the income received by the estate during the
period of administration as income on the legacy. A legacy to
the testator's surviving spouse of a pecuniary amount shall carry
with it a proportionate part of the income of the estate from the
testator's death to the date of satisfaction, determined in
accordance with division (B)(2)(a) of this section.
(C) IF A WILL OR TRUST INSTRUMENT GIVES THE FIDUCIARY DISCRETION
IN CREDITING A RECEIPT OR CHARGING AN EXPENDITURE TO INCOME OR PRINCIPAL OR
PARTLY TO EACH, NO INFERENCE OF
IMPRUDENCE OR PARTIALITY ARISES FROM THE FACT THAT THE FIDUCIARY
HAS MADE AN ALLOCATION CONTRARY TO THIS SECTION, SECTION 2109.66,
OR SECTIONS 1340.01 TO 1340.13 OF THE
REVISED CODE.
(D) A FIDUCIARY MAY CREDIT A RECEIPT OR CHARGE AN EXPENDITURE TO
INCOME OR PRINCIPAL WITH RESPECT TO A DECEDENT'S ESTATE, A TRUST UNDER A WILL,
OR PROPERTY PASSING TO A
TRUST UNDER A WILL, THAT IS ELIGIBLE FOR A FEDERAL OR OHIO ESTATE
TAX MARITAL DEDUCTION OR ESTATE TAX CHARITABLE DEDUCTION ONLY TO THE EXTENT
THAT THE CREDIT OF THE
RECEIPT OR CHARGE OF THE EXPENDITURE WILL NOT CAUSE THE REDUCTION OR LOSS
OF THE DEDUCTION.
(E) AS USED IN THIS SECTION, "FEDERAL ESTATE TAX CHARITABLE
DEDUCTION," "FEDERAL ESTATE TAX MARITAL DEDUCTION," "OHIO ESTATE
TAX CHARITABLE DEDUCTION," AND "OHIO ESTATE TAX MARITAL DEDUCTION"
HAVE THE SAME MEANINGS AS IN SECTION 1340.02
OF THE REVISED CODE.
Sec. 2131.01. PRESENT VALUES FOR PROBATE MATTERS SHALL BE
THE VALUES DETERMINED FOR OHIO ESTATE TAX PURPOSES PURSUANT TO
DIVISION (B) OF SECTION 5731.01
OF THE REVISED
CODE.
Sec. 5103.16. (A) Except as otherwise provided in this
section, no child shall be placed or accepted for placement under
any written or oral agreement or understanding that transfers or
surrenders the legal rights, powers, or duties of the legal
parent, parents, or guardian of the child into the temporary or
permanent custody of any association or institution
that is not certified by the department of human services under section
5103.03 of the Revised Code,
without the written consent of the office in the department that
oversees the interstate compact on placement of children established under
section 5103.20 of the Revised Code, or by a commitment of a
juvenile court, or by a commitment of a probate court as provided in this
section. A child may be placed temporarily without
written consent or court commitment with persons related by blood
or marriage or in a legally licensed boarding home.
(B)(1) Associations and institutions certified under
section 5103.03 of the Revised Code for the purpose of placing children in
free foster homes or for legal
adoption shall keep a record of the temporary and permanent
surrenders of children. This record shall be available for
separate statistics, which shall include a copy of an official
birth record and all information concerning the social, mental,
and medical history of the children that will aid in an
intelligent disposition of the children in case that becomes
necessary because the parents or guardians fail or are unable to
reassume custody.
(2) No child placed on a temporary surrender with an
association or institution shall be placed permanently in a
foster home or for legal adoption. All surrendered children who
are placed permanently in foster homes or for adoption shall have
been permanently surrendered, and a copy of the permanent
surrender shall be a part of the separate record kept by the
association or institution.
(C) Any agreement or understanding to transfer or
surrender the legal rights, powers, or duties of the legal parent
or parents and place a child with a person seeking to adopt the
child under this section shall be construed to contain a promise
by the person seeking to adopt the child to pay the expenses
listed in divisions (C)(1), (2), and (4) of section 3107.10 of
the Revised Code and, if the person seeking to adopt the child
refuses to accept placement of the child, to pay the temporary
costs of routine maintenance and medical care for the child in a
hospital, foster home, or other appropriate place for up to
thirty days or until other custody is established for the child,
as provided by law, whichever is less.
(D) No child shall be placed or received for adoption or
with intent to adopt unless placement is made by a public children services
agency, an institution or
association that is certified by the department of
human services under section 5103.03 of the Revised Code to place children for
adoption, or custodians in another state or foreign country, or unless all of
the following criteria are met:
(1) Prior to the placement and receiving of the child, the
parent or parents of the child personally have applied to, and
appeared before, the probate court of the county in which the
parent or parents reside, or in which the person seeking to adopt
the child resides, for approval of the proposed placement
specified in the application and have signed and filed with the
court a written statement showing that the parent or parents are
aware of their right to contest the decree of adoption subject to
the limitations of section 3107.16 of the Revised Code;
(2) The court ordered an independent home study
of the proposed placement to be conducted as provided in section
3107.031 of the Revised Code, and after completion of the
home study, the court determined that the proposed placement is in the
best interest of the child;
(3) The court has approved of record the proposed
placement.
In determining whether a custodian has authority to place
children for adoption under the laws of a foreign country, the
probate court shall determine whether the child has been released
for adoption pursuant to the laws of the country in which the
child resides, and if the release is in a form that satisfies the
requirements of the immigration and naturalization service of the
United States department of justice for purposes of immigration
to this country pursuant to section 101(b)(1)(F) of the
"Immigration and Nationality Act," 75 Stat. 650 (1961), 8 U.S.C.
1101 (b)(1)(F), as amended or reenacted.
If the parent or parents of the child are deceased or have
abandoned the child, as determined under division (A) of section
3107.07 of the Revised Code, the application for approval of the
proposed adoptive placement may be brought by the relative
seeking to adopt the child, or by the department, board, or
organization not otherwise having legal authority to place the
orphaned or abandoned child for adoption, but having legal
custody of the orphaned or abandoned child, in the probate court
of the county in which the child is a resident, or in which the
department, board, or organization is located, or where the
person or persons with whom the child is to be placed reside.
Unless the parent, parents, or guardian of the person of the
child personally have appeared before the court and applied for
approval of the placement, notice of the hearing on the
application shall be served on the parent, parents, or guardian.
The consent to placement, surrender, or adoption executed
by a minor parent before a judge of the probate court or an
authorized deputy or referee of the court, whether executed
within or outside the confines of the court, is as valid as
though executed by an adult. A consent given as above before an
employee of a children services agency that is licensed as
provided by law, is equally effective, if the consent also is
accompanied by an affidavit executed by the witnessing employee
or employees to the effect that the legal rights of the parents
have been fully explained to the parents, prior to the execution
of any consent, and that the action was done after the birth of
the child.
If the court approves a placement, the prospective adoptive parent with
whom the child is placed has care, custody, and control of the child pending
further order of the court.
(E) This section does not apply to an adoption by a
stepparent, A GRANDPARENT, or a guardian.
Section 2. That existing sections 109.32, 1339.51, 1340.01, 1340.02, 1340.03,
1340.09,
1340.12, 1716.02, 1716.05, 1716.07, 1716.17, 1716.99, 2103.041, 2107.26,
2107.33, 2109.07, 2109.09, 2109.10, 2109.67, and 5103.16 and section
2131.01 of the Revised Code are hereby repealed.
Section 3. It is the intent of the General Assembly in amending
section 1340.02 of the Revised Code in this act to limit the
application of the holding of the Ohio Supreme Court in
Sherman v. Sherman (1966), 5 Ohio St.2d 27.
Section 4. Except as otherwise provided in this section, section
1340.031 of the Revised Code, as enacted by this act, applies to
inter vivos trusts that are in existence or are created on or
after the effective date of this act. Division (B) of section
1340.031 of the Revised Code, as enacted by this act, applies to
reports furnished by an inter vivos trustee as provided in that
section on or after the effective date of this act.
Section 5. Sections 2109.07, 2109.09, and 2109.10 of the Revised Code, as
amended by
this act, shall apply regarding all administrators and executors who are
appointed on or
after the effective date of this act.
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