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S. B. No. 64 As Introduced
As Introduced
125th General Assembly | Regular Session | 2003-2004 |
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Senators Goodman, Randy Gardner, Stivers, Jacobson
A BILLTo 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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