130th Ohio General Assembly
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S. B. No. 64  As Introduced
As Introduced

125th General Assembly
Regular Session
2003-2004
S. B. No. 64


Senators Goodman, Randy Gardner, Stivers, Jacobson 



A BILL
To amend sections 1337.091, 1339.66, 2107.27, and 2109.62 and to enact sections 1339.621 and 2107.24 of the Revised Code to provide for distribution of the trust estate upon a probate court's termination of small trusts and representation in a trust, to specify the circumstances for the revocation or nonrevocation of a power of attorney upon the termination of the marriage or separation agreement between the principal and the principal's spouse as attorney in fact, and to provide a procedure for a probate court to treat a document as a will notwithstanding its noncompliance with the statutory formalities for executing wills.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 1337.091, 1339.66, 2107.27, and 2109.62 be amended and sections 1339.621 and 2107.24 of the Revised Code be enacted to read as follows:
Sec. 1337.091.  (A) The death or adjudged incompetency of any principal who has executed a power of attorney in writing does not revoke the power and authority of the attorney in fact who, without actual knowledge of the death or adjudged incompetency of the principal, acts in good faith under the power of attorney. Any action so taken, unless otherwise invalid or unenforceable, inures to the benefit of and binds the principal and the principal's heirs, devisees, and personal representatives.
(B)(1) An affidavit, that is executed by the attorney in fact stating that the attorney in fact did not have, at the time of doing an act pursuant to the power of attorney, actual knowledge of the revocation of the power of attorney by the principal, or the revocation of the power of attorney by death or adjudged incompetency of the principal is, in the absence of fraud, conclusive proof of the nonrevocation of the power of attorney at that time. If if the affadavit contains the following:
(a) A statement that the attorney in fact has no actual knowledge of the revocation of the power of attorney by the principal;
(b) A statement that the attorney in fact has no actual knowledge of the revocation of the power of attorney by death or adjudged incompetency of the principal;
(c) If the attorney in fact was never married to the principal, a statement of that fact;
(d) If the attorney in fact was married to the principal and the marriage has been terminated, a statement that the power of attorney is not revoked by reason of law due to the termination of the marriage between the principal and the attorney in fact;
(e) If the attorney in fact is married to the principal and a separation agreement has been entered into between the principal and the attorney in fact in which they intend to fully and finally settle each spouse's prospective property rights in the property of the other, a statement that the power of attorney is not revoked by reason of law due to the existence of a separation agreement of that nature entered into between the principal and the attorney in fact.
(2) If the exercise of the power of attorney requires the execution and delivery of any instrument that is recordable, the affidavit when that is executed under division (B)(1) of this section, if acknowledged before a notary public in the same manner as a deed, is likewise recordable.
(C) This section shall not be construed to alter or affect any provision for revocation contained in any power of attorney. This section shall not be construed to affect any provision of a power of attorney that indicates, consistent with section 1337.09 of the Revised Code, that the authority of the attorney in fact is exercisable by the attorney in fact as provided in the power of attorney notwithstanding the later disability, incapacity, or adjudged incompetency of the principal.
Sec. 1339.621.  If a principal executes a power of attorney designating the principal's spouse as the attorney in fact for the principal and if after executing the power of attorney, the principal and the principal's spouse are divorced, obtain a dissolution or annulment of their marriage, or enter into a separation agreement pursuant to which they intend to fully and finally settle each spouse's prospective property rights in the property of the other, the designation in the power of attorney of the spouse or former spouse of the principal to act as attorney in fact for the principal is revoked, unless the power of attorney provides otherwise. The subsequent remarriage of the principal to the principal's former spouse, or the termination of a separation agreement between the principal and the principal's spouse, does not revive a power of attorney that is revoked under this section.
Sec. 1339.66.  (A)(1) Upon the filing of a motion by a trustee with the court that has jurisdiction over the trust, upon the provision of reasonable notice to all beneficiaries who are known and in being and who have vested or contingent interests in the trust, and after holding a hearing, the court may terminate the trust, in whole or in part, if it determines that all of the following apply:
(a) It is no longer economically feasible to continue the trust.
(b) The termination of the trust is for the benefit of the beneficiaries.
(c) The termination of the trust is equitable and practical.
(d) The current value of the trust is less than one hundred thousand dollars.
(2) The existence of a spendthrift or similar provision in a trust instrument or will does not preclude the termination of a trust pursuant to this section.
(B) If property is to be distributed from an estate being probated to a trust and the termination of the trust pursuant to this section does not clearly defeat the intent of the testator, the probate court has jurisdiction to order the outright distribution of the property or to make the property custodial property under sections 1339.31 to 1339.39 of the Revised Code. A probate court may so order whether the application for the order is made by an inter vivos trustee named in the will of the decedent or by a testamentary trustee.
(C) Upon the termination of a trust pursuant to this section, the probate court shall order the distribution of the trust estate in accordance with any provision specified in the trust instrument for the premature termination of the trust. If there is no provision of that nature in the trust instrument, the probate court shall order the distribution of the trust estate among the beneficiaries of the trust in accordance with their respective beneficial interests and in a manner that the court determines to be equitable. For purposes of ordering the distribution of the trust estate among the beneficiaries of the trust under this division, the court shall consider all of the following:
(1) The existence of any agreement among the beneficiaries with respect to their beneficial interests;
(2) The actuarial values of the separate beneficial interests of the beneficiaries;
(3) Any expression of preference of the beneficiaries that is contained in the trust instrument.
(D) Unless otherwise represented or bound, a minor, an incapacitated or unborn person, or a person whose identity or location is unknown and is not reasonably ascertainable may be represented by or bound by another person who has a substantially identical interest in the trust as that minor, incapacitated or unborn person, or person whose identity or location is unknown and is not reasonably ascertainable, but only to the extent that there is no conflict of interest between the person who is represented or bound and the person who represents or binds that person. As used in this division, "minor" means a person who is under eighteen years of age.
Sec. 2107.24.  If a document that purports to be a will is not executed in compliance with the requirements of section 2107.03 of the Revised Code, that document shall be treated as if it had been executed as a will in compliance with the requirements of that section if a probate court, after holding a hearing, finds that the proponent of the document as a purported will has established, by clear and convincing evidence, all of the following:
(A) The decedent prepared the document or caused the document to be prepared.
(B) The decedent signed or attempted to sign the document and intended the document to constitute the decedent's will.
(C) Two or more witnesses saw the decedent sign or attempt to sign the document.
Sec. 2107.27. (A) When application is made to the probate court to admit to probate a will that has been lost, spoliated, or destroyed as provided in section 2107.26 of the Revised Code or a document that is treated as a will as provided in section 2107.24 of the Revised Code, the party seeking to prove the will shall give a written notice by certified mail to the surviving spouse of the testator, to all persons who would be entitled to inherit from the testator under Chapter 2105. of the Revised Code if the testator had died intestate, to all legatees and devisees that are named in the will, and to all legatees and devisees that are named in the most recent will prior to the lost, spoliated, or destroyed will that is known to the applicant.
(B) In the cases described in division (A) of this section, the proponents and opponents of the will shall cause the witnesses to the will, and any other witnesses that have relevant and material knowledge about the will, to appear before the court to testify. If any witnesses reside out of its jurisdiction, or reside within its jurisdiction but are infirm or unable to attend, the probate court may order their testimony to be taken and reduced to writing by some competent person. The testimony shall be filed in the records of the probate court pertaining to the testator's estate.
(C) If upon such proof the court finds that the requirements of section 2107.24 or 2107.26 of the Revised Code, whichever is applicable, have been met, the probate court shall find and establish the contents of the will as near as can be ascertained. The contents of the will established under section 2107.26 of the Revised Code shall be as effectual for all purposes as if the original will had been admitted to probate and record. The contents of the will established under section 2107.24 of the Revised Code shall be as effectual for all purposes as if the document treated as a will had satisfied all of the requirements of section 2107.03 of the Revised Code and had been admitted to probate and record.
Sec. 2109.62.  (A)(1) Upon the filing of a motion by a trustee with the court that has jurisdiction over the trust, upon the provision of reasonable notice to all beneficiaries who are known and in being and who have vested or contingent interests in the trust, and after holding a hearing, the court may terminate the trust, in whole or in part, if it determines that all of the following apply:
(a) It is no longer economically feasible to continue the trust.
(b) The termination of the trust is for the benefit of the beneficiaries.
(c) The termination of the trust is equitable and practical.
(d) The current value of the trust is less than one hundred thousand dollars.
(2) The existence of a spendthrift or similar provision in a trust instrument or will does not preclude the termination of a trust pursuant to this section.
(B) If property is to be distributed from an estate being probated to a trust and the termination of the trust pursuant to this section does not clearly defeat the intent of the testator, the probate court has jurisdiction to order the outright distribution of the property or to make the property custodial property under sections 1339.31 to 1339.39 of the Revised Code. A probate court may so order whether the application for the order is made by an inter vivos trustee named in the will of the decedent or by a testamentary trustee.
(C) Upon the termination of a trust pursuant to this section, the probate court shall order the distribution of the trust estate in accordance with any provision specified in the trust instrument for the premature termination of the trust. If there is no provision of that nature in the trust instrument, the probate court shall order the distribution of the trust estate among the beneficiaries of the trust in accordance with their respective beneficial interests and in a manner that the court determines to be equitable. For purposes of ordering the distribution of the trust estate among the beneficiaries of the trust under this division, the court shall consider all of the following:
(1) The existence of any agreement among the beneficiaries with respect to their beneficial interests;
(2) The actuarial values of the separate beneficial interests of the beneficiaries;
(3) Any expression of preference of the beneficiaries that is contained in the trust instrument.
(D) Unless otherwise represented or bound, a minor, an incapacitated or unborn person, or a person whose identity or location is unknown and is not reasonably ascertainable may be represented by or bound by another person who has a substantially identical interest in the trust as that minor, incapacitated or unborn person, or person whose identity or location is unknown and is not reasonably ascertainable, but only to the extent that there is no conflict of interest between the person who is represented or bound and the person who represents or binds that person. As used in this division, "minor" means a person who is under eighteen years of age.
Section 2. That existing sections 1337.091, 1339.66, 2107.27, and 2109.62 of the Revised Code are hereby repealed.
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