The online versions of legislation provided on this website are not official. Enrolled bills are the final version passed by the Ohio General Assembly and presented to the Governor for signature. The official version of acts signed by the Governor are available from the Secretary of State's Office in the Continental Plaza, 180 East Broad St., Columbus.
H. B. No. 83 As IntroducedAs Introduced
|126th General Assembly|
To enact section 2109.361 of the Revised Code to require the probate court, upon application by a fiduciary or interested party, to determine the fairness of an agreement requiring a fiduciary to pay a percentage of an inheritance or a dollar amount to any person other than the beneficiary and to allow the probate court to approve, modify, or invalidate the agreement.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That section 2109.361 of the Revised Code be enacted to read as follows:
Sec. 2109.361. (A) As used in this section, "third-party distribution" means the distribution by a fiduciary of an estate or trust of the assets of that estate or trust when both of the following apply:
(1) The fiduciary makes the distribution to either of the following persons:
(a) The transferee of a beneficiary;
(b) Any person pursuant to an agreement, request, or instruction of a beneficiary or pursuant to a legal claim against a beneficiary.
(2) The distribution is the subject of an agreement between a beneficiary and any person that requires the fiduciary to pay a percentage of an inheritance or a dollar amount to any person other than the beneficiary.
(B) Prior to making a third-party distribution, the fiduciary or an interested party may file an application for the approval of a third-party distribution with the probate court. An application filed pursuant to this division shall identify the person to whom the third-party distribution is to be made, disclose the basis for making the third-party distribution, and include a copy of any written agreement between the affected beneficiary and the person to whom the third-party distribution is to be made.
(C)(1) If a fiduciary makes a third-party distribution without the prior approval of the probate court, that fiduciary shall be liable to the affected beneficiary, up to the full amount of the third-party distribution, unless either of the following applies:
(a) The beneficiary, in writing directly to the fiduciary, waives the fiduciary's liability or consents to the third-party distribution.
(b) The third-party distribution is disclosed on a fiduciary accounting filed with the probate court with notice of the accounting to the beneficiary, and the beneficiary fails to file exceptions to the third-party distribution.
(2) The probate court may reduce or eliminate a fiduciary's liability under division (C)(1) of this section to the extent that the fiduciary establishes to the satisfaction of the court that the amount and allocation of the third-party distribution was just and equitable under the circumstances. The court shall review the agreement that gave rise to the third-party distribution in the same manner as if the fiduciary or an interested party filed an application pursuant to division (B) of this section prior to the third-party distribution.
(D) The probate court shall hold a hearing on an application filed under division (B) of this section. The court shall serve notice of the hearing on all interested parties at least fifteen days prior to the hearing in a manner as ordered by the court. Any notice that is required or permitted by this section shall be served, and the right to receive any notice may be waived, in accordance with the Rules of Civil Procedure.
(E) The probate court may find the agreement that is the subject of an application filed under division (B) of this section to be invalid and unenforceable, in whole or in part, or the probate court may approve the third-party distribution, in whole or in part, as the court determines is just and equitable. To the extent that the application is approved, the court shall determine whether the third-party distribution is properly charged solely against the beneficiary's share of the estate or trust or whether some or all of the third-party distribution is properly charged against the residue of the affected estate or trust. Without limitation, the court may consider any of the following factors in evaluating the application:
(1) The amount or percentage of the affected beneficiary's share that would be the subject of the proposed third-party distribution measured against the reasonable value of any goods or services the person to whom the third-party distribution would be made provided to the beneficiary or to the estate or trust;
(2) Whether the agreement, request, or instructions of the affected beneficiary were procured by duress, fraud, misrepresentation, undue influence, or other unfair means.