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H. B. No. 160 As Passed by the HouseAs Passed by the House
127th General Assembly | Regular Session | 2007-2008 |
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Cosponsors:
Representatives Latta, Seitz, Book, Adams, Batchelder, Blessing, Brown, Budish, Chandler, Coley, Combs, Daniels, DeBose, Domenick, Fende, Gibbs, Harwood, Hite, Huffman, Hughes, Letson, Luckie, Otterman, Raussen, Schindel, Schneider, Stebelton, Wagoner, Zehringer
A BILL
To amend section 5815.36 of the Revised Code to clarify and modify the law relating to disclaimers under the Ohio Trust Code.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That section 5815.36 of the Revised Code be amended to read as follows:
Sec. 5815.36. (A) As used in this section:
(1) "Disclaimant" means any person, any guardian or
personal
representative of a person or estate of a person, or any
attorney-in-fact or agent of a person having a general or
specific
authority to act granted in a written instrument, who is
any of
the following:
(a) With respect to testamentary instruments and intestate
succession, an heir, next of kin, devisee, legatee, donee, person
succeeding to a disclaimed interest, surviving joint tenant,
surviving tenant by the entireties, surviving tenant of a tenancy
with a right of survivorship, beneficiary under a testamentary
instrument, or person designated to take pursuant to a power of
appointment exercised by a testamentary instrument;
(b) With respect to nontestamentary instruments, a
grantee,
donee, person succeeding to a disclaimed interest,
surviving joint
tenant, surviving tenant by the entireties,
surviving tenant of a
tenancy with a right of survivorship,
beneficiary under a
nontestamentary instrument, or person
designated to take pursuant
to a power of appointment exercised
by a nontestamentary
instrument;
(c) With respect to fiduciary rights, privileges, powers,
and immunities, a fiduciary under a testamentary or
nontestamentary instrument. This Division (A)(1)(c) of this section does not authorize a
fiduciary who disclaims fiduciary rights, privileges, powers, and immunities to disclaim cause the rights of beneficiaries any beneficiary to be disclaimed unless the
instrument creating the fiduciary relationship authorizes the fiduciary to make such a
disclaimer.
(d) Any person entitled to take an interest in property
upon
the death of a person or upon the occurrence of any other
event.
(2) "Personal representative" includes any fiduciary as defined in section 2109.01 of the Revised Code and any executor, trustee, guardian, or other person or entity having a fiduciary relationship with regard to any interest in property passing to the fiduciary, executor, trustee, guardian, or other person or entity by reason of a disclaimant's death.
(3) "Property" means all forms of property, real and
personal, tangible and intangible.
(B)(1) A disclaimant, other than a fiduciary under an
instrument who is not authorized by the instrument to disclaim
the
interest of a beneficiary, may disclaim, in whole or in part,
the
succession to any property by executing and by delivering,
filing,
or recording a written disclaimer instrument in the
manner
provided in this section.
(2) A disclaimant who is a fiduciary under an instrument
may
disclaim, in whole or in part, any right, power, privilege,
or
immunity, by executing and by delivering, filing, or recording
a
written disclaimer instrument in the manner provided in this
section.
(3) The written instrument of disclaimer shall be signed
and
acknowledged by the disclaimant and shall contain all of the
following:
(a) A reference to the donative instrument;
(b) A description of the property, part of property, or
interest disclaimed, and of any fiduciary right, power,
privilege,
or immunity disclaimed;
(c) A declaration of the disclaimer and its extent.
(4) The guardian of the estate of a minor or an
incompetent,
or the personal representative of a deceased person, whether or not authorized by the instrument to disclaim,
with the
consent of the probate division of the court of common
pleas, may
disclaim, in whole or in part, the succession to any
property, or
interest in property, that the ward, if an adult and
competent, or
the deceased, if living, might have disclaimed.
The guardian or
personal representative, or any interested person
may file an
application with the probate division of the court of
common pleas
that has jurisdiction of the estate, asking that the
court order
the guardian or personal representative to execute
and deliver,
file, or record the disclaimer on behalf of the ward
or, estate, or deceased person.
The court shall order the guardian or personal
representative to
execute and deliver, file, or record the
disclaimer if the court
finds, upon hearing after notice to
interested parties and such
other persons as the court shall
direct, that:
(a) It is in the best interests of those interested in the
estate of the person and of those who will take the disclaimed
interest;
(b) It would not materially, adversely affect the minor or
incompetent, or the beneficiaries of the estate of the decedent,
taking into consideration other available resources and the age,
probable life expectancy, physical and mental condition, and
present and reasonably anticipated future needs of the minor or
incompetent or the beneficiaries of the estate of the decedent.
A written instrument of disclaimer ordered by the court
under
this division shall be executed and be delivered, filed, or
recorded within the time and in the manner in which the person
could have disclaimed if the person were living, an adult,
and
competent.
(C) A partial disclaimer of property that is subject to a
burdensome interest created by the donative instrument is not
effective unless the disclaimed property constitutes a gift that
is separate and distinct from undisclaimed gifts.
(D) The disclaimant shall deliver, file, or record the
disclaimer, or cause the same to be done, not later than nine
months prior to accepting any benefits of the disclaimed interest and at any time after the latest of the following dates:
(1) The effective date of the donative instrument if both
the taker and the taker's interest in the property are
finally
ascertained on that date;
(2) The date of the occurrence of the event upon which
both
the taker and the taker's interest in the property
become finally
ascertainable;
(3) The date on which the disclaimant attains twenty-one eighteen
years of age or is no longer an incompetent, without tendering or
repaying any benefit received while the disclaimant was under
twenty-one eighteen years of age or an incompetent, and even if a guardian
of a minor or incompetent had filed an application pursuant to
division (B)(4) of this section and the probate division of the
court of common pleas involved did not consent to the guardian
executing a disclaimer.
(E) No disclaimer instrument is effective under this
section
if either of the following applies under the terms of the
disclaimer instrument:
(1) The disclaimant has power to revoke the disclaimer.
(2) The disclaimant may transfer, or direct to be
transferred, to self the entire legal and equitable
ownership
of
the property subject to the disclaimer instrument.
(F)(1) Subject to division (F)(2) of this section,
if the
interest disclaimed is created by a
nontestamentary instrument,
the disclaimer instrument shall be
delivered personally or by
certified mail to the trustee or other
person who has legal title
to, or possession of, the property
disclaimed.
(2) If the interest disclaimed is created by a
testamentary
instrument, by intestate succession,
by a
transfer on death
deed
pursuant to section 5302.22 of the Revised Code,
or by a
certificate of title to a motor vehicle, watercraft, or outboard
motor that evidences ownership of the motor vehicle, watercraft,
or outboard motor that is transferable on death pursuant to
section 2131.13 of the Revised Code, the
disclaimer instrument
shall be filed in the probate division of
the court of common
pleas in the county in which proceedings for
the administration of
the decedent's estate have been commenced,
and an executed copy of
the disclaimer instrument shall be
delivered personally or by
certified mail to the personal
representative of the decedent's
estate.
(3) If no proceedings for the administration of the
decedent's estate have been commenced, the disclaimer instrument
shall be filed in the probate division of the court of common
pleas in the county in which proceedings for the administration
of
the decedent's estate might be commenced according to law.
The
disclaimer instrument shall be filed and indexed, and fees
charged, in the same manner as provided by law for an application
to be appointed as personal representative to administer the
decedent's estate. The disclaimer is effective whether or not
proceedings thereafter are commenced to administer the decedent's
estate. If proceedings thereafter are commenced for the
administration of the decedent's estate, they shall be filed
under, or consolidated with, the case number assigned to the
disclaimer instrument.
(4) If an interest in real estate is disclaimed, an
executed
copy of the disclaimer instrument also shall be recorded
in the
office of the recorder of the county in which the real
estate is
located. The disclaimer instrument shall include a
description of
the real estate with sufficient certainty to
identify it, and
shall contain a reference to the record of the
instrument that
created the interest disclaimed. If title to the
real estate is
registered under Chapters 5309. and 5310. of the
Revised Code, the
disclaimer interest shall be entered as a
memorial on the last
certificate of title. A spouse of a
disclaimant has no dower or
other interest in the real estate
disclaimed.
(G) Unless the If a donative instrument expressly provides
that,
if there is for the distribution of property, part of property, or interest in property if there is a disclaimer, there shall not be any
acceleration of
remainders or other interests, the property, part of property, or interest disclaimed shall be distributed or disposed of, and accelerated or not accelerated, in accordance with the donative instrument. In the absence of express provisions to the contrary in the donative instrument, the property, part
of property, or
interest in property disclaimed, and any future
interest that is
to take effect in possession or enjoyment at or
after the
termination of the interest disclaimed, shall descend,
be
distributed, or otherwise be disposed of, and shall be
accelerated, in the following manner:
(1) If intestate or testate succession is disclaimed, as
if
the disclaimant had predeceased the decedent;
(2) If the disclaimant is one designated to take pursuant
to
a power of appointment exercised by a testamentary instrument,
as
if the disclaimant had predeceased the donee of the power;
(3) If the donative instrument is a nontestamentary
instrument, as if the disclaimant had died before the effective
date of the nontestamentary instrument;
(4) If the disclaimer is of a fiduciary right, power,
privilege, or immunity, as if the right, power, privilege, or
immunity was never in the donative instrument.
(H) A disclaimer pursuant to this section is effective as
of, and relates back for all purposes to, the date upon which the
taker and the taker's interest have been finally
ascertained.
(I) A disclaimant who has a present and future interest in
property, and disclaims the disclaimant's present interest
in
whole or in part,
is considered to have disclaimed the
disclaimant's future
interest to the same
extent, unless a
contrary intention appears in the disclaimer
instrument or the
donative instrument. A disclaimant is not
precluded from
receiving, as an alternative taker, a beneficial
interest in the
property disclaimed, unless a contrary intention
appears in the
disclaimer instrument or in the donative
instrument.
(J) The disclaimant's right to disclaim under this section
is barred if, before the expiration of the period within which
the
disclaimant
may disclaim the interest, the disclaimant does any of
the
following:
(1) Assigns, conveys, encumbers, pledges, or transfers, or
contracts to assign, convey, encumber, pledge, or transfer, the
property or any interest in it;
(2) Waives in writing the disclaimant's right to disclaim
and executes
and delivers, files, or records the waiver in the
manner provided
in this section for a disclaimer instrument;
(3) Accepts the property or an interest in it;
(4) Permits or suffers a sale or other disposition of the
property pursuant to judicial action against the
disclaimant.
(K) A Neither a fiduciary's application for appointment or
assumption
of duties as a fiduciary does not waive nor a beneficiary's application for appointment as a personal representative or fiduciary waives or bar bars the
disclaimant's
right to disclaim a right, power, privilege, or immunity as a personal representative or fiduciary or the beneficiary's right to disclaim property.
(L) The right to disclaim under this section exists
irrespective of any limitation on the interest of the disclaimant
in the nature of a spendthrift provision or similar restriction.
(M) A disclaimer instrument or written waiver of the right
to disclaim that has been executed and delivered, filed, or
recorded as required by this section is final and binding upon
all
persons.
(N) The right to disclaim and the procedures for
disclaimer
established by this section are in addition to, and do
not exclude
or abridge, any other rights or procedures existing that exist or formerly existed
under any
other section of the Revised Code or at common law to
assign,
convey, release, refuse to accept, renounce, waive, or
disclaim
property.
(O)(1) No person is liable for distributing or disposing
of
property in a manner inconsistent with the terms of a valid
disclaimer if the distribution or disposition is otherwise proper
and the person has no actual knowledge of the disclaimer.
(2) No person is liable for distributing or disposing of
property in reliance upon the terms of a disclaimer that is
invalid because the right of disclaimer has been waived or barred
if the distribution or disposition is otherwise proper and the
person has no actual knowledge of the facts that constitute a
waiver or bar to the right to disclaim.
(P)(1) A disclaimant may disclaim pursuant to this
section
any interest in property that is in existence on
September 27,
1976, if either the interest in the property or the
taker of the
interest in the property is not finally ascertained
on that date.
(2) No disclaimer executed pursuant to this section
destroys
or diminishes an interest in property that exists on
September 27,
1976, in any person other than the disclaimant.
(Q) This section may be applied separately to different interests or powers created in the disclaimant by the same testamentary or nontestamentary instrument.
Section 2. That existing section 5815.36 of the Revised Code is hereby repealed.
Section 3. The amendments to divisions (A), (B), (G), (K), (N), and (Q) of section 5815.36 of the Revised Code contained in Section 1 of this act are intended to clarify and be declaratory of the law as it existed prior to the enactment of this act and shall be construed accordingly.
Section 4. The General Assembly recognizes that section 2518 of the Internal Revenue Code defines a qualified disclaimer, in part, as a written refusal by a person to accept an interest in property that is received by the transferor of the interest within nine months after the later of the date on which the transfer creating the interest is made and the date on which the person attains twenty-one years of age. By amending division (D) of section 5815.36 of the Revised Code to eliminate a reference to the nine-month period, the General Assembly intends to create the possibility that some disclaimers governed by the law of this state will be qualified under section 2518 of the Internal Revenue Code and some will not be qualified under that section.
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