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S. B. No. 124 As IntroducedAs Introduced
128th General Assembly | Regular Session | 2009-2010 |
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Senators Faber, Schiavoni
Cosponsors:
Senators Seitz, Fedor, Schuler
A BILL
To amend sections 5302.01, 5302.02, 5302.22,
5302.221, 5302.23, and 5815.36 and to enact
sections 5302.222 and 5302.24 of the Revised Code
to change the transfer on death (TOD) designation
instrument from a deed to an affidavit, to allow
real property owners holding title in survivorship
tenancy to execute such an affidavit, to clarify
the status of a trustee of a trust as a TOD
beneficiary and the dower rights of the spouse of
the property owner, and to make other changes
pertaining to the transfer on death of real
property.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 5302.01, 5302.02, 5302.22, 5302.221,
5302.23, and 5815.36 be amended and sections 5302.222 and 5302.24
of the Revised Code be enacted to read as follows:
Sec. 5302.01. The forms set forth in sections 5302.05,
5302.07,
5302.09,
5302.11, 5302.12, 5302.14, and 5302.17, and
5302.22 of the Revised Code may be used and
shall be sufficient
for their respective purposes. They shall be known as
"Statutory
Forms" and may be referred to as such. They may be altered as
circumstances require, and the authorization of such those forms
shall not prevent
the use of other forms. Wherever the phrases
defined in sections 5302.06,
5302.08, 5302.10, and 5302.13 of the
Revised Code are to be incorporated in
instruments by reference,
the method of incorporation as indicated in the
statutory forms
shall be sufficient, but shall not preclude other methods.
Sec. 5302.02. The rules and definitions contained in
sections 5302.03,
5302.04, 5302.06, 5302.08, 5302.10, 5302.13,
5302.17, 5302.18, 5302.19,
5302.20, and 5302.21, and 5302.22 of
the Revised
Code apply to all deeds or other
instruments relating
to real estate, whether the statutory forms or other
forms
are
used, where the instruments are executed on or after October 1,
1965, or, in relation to the. The rules and definitions contained
in
section 5302.22 of the Revised Code, as it existed prior to the
effective date of this amendment, apply to instruments executed on
or after August 29, 2000, and prior to the effective date of this
amendment. The rules and definitions contained in section 5302.22
of the Revised Code apply to instruments executed on or after the
effective date of this amendment.
Sec. 5302.22. (A) A deed conveying any interest in real
property, and in substance following the form set forth in this
division,
when duly executed in accordance with Chapter 5301. of
the Revised Code and
recorded
in the office of the county
recorder, creates a present interest as sole
owner or as a tenant
in common
in the grantee and creates a transfer on death interest
in the
beneficiary or
beneficiaries. Upon the death of the
grantee,
the deed vests the interest of the
decedent in the
beneficiary or beneficiaries. The deed described
in this division
shall in substance conform to the following form:
"Transfer on Death Deed
.................... (marital status), of
...........
County,
.................... (for valuable consideration paid, if
any),
grant(s) (with covenants, if any), to .................... whose
tax
mailing address is ...................., transfer on death to
...................., beneficiary(s), the following real
property:
(Description of land or interest in land and encumbrances,
reservations, and exceptions, if any.)
Prior Instrument Reference: .............................
...................., wife (husband) of the grantor, releases all
rights of dower
therein.
Executed
this ...............
day of
................
|
............................... |
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(Signature of
Grantor) |
(Execution in accordance with Chapter 5301. of the Revised
Code)" As used in sections 5302.22, 5302.222, 5302.23, and 5302.24
of the Revised Code:
(1) "Affidavit of confirmation" means an affidavit executed
under division (A) of section 5302.222 of the Revised Code.
(2) "Survivorship tenancy" means an ownership of real
property or any interest in real property by two or more persons
that is created by executing a deed pursuant to section 5302.17 of
the Revised Code.
(3) "Survivorship tenant" means one of the owners of real
property or any interest in real property in a survivorship
tenancy.
(4) "Tenants by the entireties" mean only those persons who
are vested as tenants in an estate by the entireties with
survivorship pursuant to any deed recorded between February 9,
1972, and April 3, 1985, under section 5302.17 of the Revised Code
as it existed during that period of time. Nothing in sections
5302.22, 5302.222, 5302.23, and 5302.24 of the Revised Code
authorizes the creation of a tenancy by the entireties or
recognizes a tenancy by the entireties created outside that period
of time.
(5) "Transfer on death designation affidavit" means an
affidavit executed under this section.
(6) "Transfer on death beneficiary or beneficiaries" means
the beneficiary or beneficiaries designated in a transfer on death
designation affidavit.
(B) Any person individual who, under the Revised Code or
the
common law
of
this state, owns real property or any interest in
real property
as a sole
owner or, as a tenant in common, or as a
survivorship tenant, or together with the individual's spouse owns
an indivisible interest in real property as tenants by the
entireties,
may create an designate the entire interest, or any
specified part that is less than the entire interest,
in
the that
real property as transferable on death to a designated beneficiary
or beneficiaries by executing and
recording
a deed, together with
the individual's spouse, if any, a transfer on death designation
affidavit as provided in this section conveying the
person's
entire,
separate interest in the real property to one or
more
individuals,
including the grantor, and designating one or
more
other persons,
identified in the deed by name, as transfer on
death
beneficiaries.
A deed conveying an interest in real property that includes a
transfer on death beneficiary designation need not be supported by
consideration and need not be delivered to the transfer on death
beneficiary to be effective. If the affidavit is executed by an
individual together with the individual's spouse, if any, the
dower rights of the spouse are subordinate to the vesting of title
to the interest in the real property in the transfer on death
beneficiary or beneficiaries designated under this section. The
affidavit shall be recorded in the office of the county recorder
in the county in which the real property is located, and, when so
recorded, the affidavit or a certified copy of the affidavit shall
be evidence of the transfer on death beneficiary or beneficiaries
so designated in the affidavit insofar as the affidavit affects
title to the real property.
(C) Upon (1) If an individual who owns real property or an
interest in real property as a sole owner or as a tenant in common
executes a transfer on death designation affidavit, upon the death
of that individual, title to the real property or interest in the
real property specified in the affidavit vests in the transfer on
death beneficiary or beneficiaries designated in the affidavit.
(2) If an individual who owns real property or an interest in
real property as a survivorship tenant executes a transfer on
death designation affidavit, upon the death of that individual or
of one but not all of the surviving survivorship tenants, title to
the real property or interest in the real property specified in
the affidavit vests in the surviving survivorship tenant or
tenants. Upon the death of the last surviving survivorship tenant,
title to the real property or interest in the real property vests
in the transfer on death beneficiary or beneficiaries designated
in the affidavit, subject to division (B)(7) of section 5302.23 of
the Revised Code.
(3) If an individual who together with the individual's
spouse owns an indivisible interest in real property as tenants by
the entireties executes a transfer on death designation affidavit,
upon the death of that individual, title to the real property or
interest in the real property vests in the remaining tenant by the
entireties. Upon the death of the remaining tenant by the
entireties, title to the real property or interest in the real
property vests in the transfer on death beneficiary or
beneficiaries designated in the affidavit, subject to division
(B)(7) of section 5302.23 of the Revised Code.
(D) A transfer on death designation affidavit shall be
verified before any person authorized to administer oaths and
shall include all of the following:
(1) A description of the real property the title to which is
affected by the affidavit and a reference to an instrument of
record containing that description;
(2) If less than the entire interest in the real property is
to be transferred on death under the affidavit, a statement of the
specific interest or part of the interest in the real property
that is to be so transferred;
(3) A statement by the individual executing the affidavit
that the individual is the person appearing on the record of the
real property as the owner of the real property or interest in the
real property at the time of the recording of the affidavit and
the marital status of that owner. If the owner is married, the
affidavit shall include a statement by the owner's spouse stating
that the spouse's dower rights are subordinate to the vesting of
title to the real property or interest in the real property in the
transfer on death beneficiary or beneficiaries designated in the
affidavit.
(4) A statement designating one or more persons, identified
by name, as transfer on death beneficiary or beneficiaries.
(E) The county recorder of the county in which a transfer on
death designation affidavit is offered for recording shall receive
the affidavit and cause it to be recorded in the same manner as
deeds are recorded. The county recorder shall collect a fee for
recording the affidavit in the same amount as the fee for
recording deeds. The county recorder shall index the affidavit in
the name of the owner of record of the real property or interest
in the real property who executed the affidavit.
(F) A transfer on death designation affidavit need not be
supported by consideration and need not be delivered to the
transfer on death beneficiary or beneficiaries designated in the
affidavit to be effective. However, in order to be effective, that
affidavit shall be recorded with the county recorder as described
in this section prior to the death of the individual who executed
the affidavit.
(G) Subject to division (C) of this section, upon the death
of any individual who owns real property
or an
interest in real
property that is subject to a transfer on
death beneficiary
designation made under a transfer on death deed designation
affidavit
as provided in this section,
the
deceased owner's that
real property or interest in real property of the deceased owner
shall
be transferred only to the
transfer on death beneficiary or
beneficiaries who are
identified in the deed affidavit by
name and
who survive the deceased owner
or that are in existence on the
date
of death of
the deceased
owner. The transfer of the deceased
owner's interest
shall be
recorded by presenting to the county
auditor and filing
with the
county recorder an affidavit,
accompanied by a certified
copy of a
death certificate for the
deceased owner. The affidavit shall
recite the name and address of
each designated transfer on death
beneficiary
who survived the
deceased owner or that is in
existence on the date of the
deceased
owner's death, the date
of
the deceased owner's death, a
description of the subject real
property or interest in real
property, and the names of each
designated transfer on death
beneficiary who has not survived the
deceased
owner or that is not
in
existence on the date of the
deceased owner's death. The
affidavit shall be accompanied by a
certified copy of a death
certificate for each designated transfer
on death beneficiary who
has not survived the deceased owner. The
county recorder shall
make an index reference to any affidavit so
filed in the record of
deeds.
Upon the death of any individual holding real property or an
interest in real property that is subject to a transfer on death
beneficiary designation made under a transfer on death deed as
provided in this section, if the title to the real property is
registered pursuant to Chapter 5309. of the Revised Code, the
procedure for the transfer of the interest of the deceased owner
shall be
pursuant to section 5309.081 of the Revised Code For
purposes of this division, if a natural or legal person designated
by name in the affidavit as a transfer on death beneficiary or as
a contingent transfer on death beneficiary as provided in division
(B)(2) of section 5302.23 of the Revised Code solely in that
person's capacity as a trustee of a trust has died, has resigned,
or otherwise has been replaced by a successor trustee of the trust
on the date of death of the deceased owner, the successor trustee
of the trust shall be considered the transfer on death beneficiary
or contingent transfer on death beneficiary in existence on the
date of death of the deceased owner in full compliance with this
division, notwithstanding that the successor trustee is not named
as a transfer on death beneficiary or contingent transfer on death
beneficiary in the affidavit.
(H) Any person who knowingly makes any false statement in a
transfer on death designation affidavit is guilty of falsification
under division (A)(6) of section 2921.13 of the Revised Code.
Sec. 5302.221. (A) As used in this section:
"Estate" has the same meaning as in section 5111.11 of the
Revised Code.
"Medicaid estate recovery program" means the program
instituted under section 5111.11 of the Revised Code.
(B) The administrator of the medicaid estate recovery program
shall prescribe a form on which a beneficiary of a transfer on
death deed designation affidavit as provided in section 5302.22 of
the Revised Code, who
survives the deceased owner of the real
property or an interest in
the real property or that is in
existence on the date of death of
the deceased owner, or such a
that beneficiary's representative is to
indicate both of the
following:
(1) Whether the deceased owner was either of the following:
(a) A decedent subject to the medicaid estate recovery
program;
(b) The spouse of a decedent subject to the medicaid estate
recovery program.
(2) Whether the real property or interest in the real
property was part of the estate of a decedent subject to the
medicaid estate recovery program.
(C) A county recorder shall obtain a properly completed form
prescribed under division (B) of this section from the beneficiary
of a transfer on death deed designation affidavit or the
beneficiary's representative
and send a copy of the form to the
administrator of the medicaid
estate recovery program before
recording the transfer of the real
property or interest in the
real property under division (C) of
section 5302.22 5302.222 of
the Revised Code.
Sec. 5302.222. (A) The transfer of a deceased owner's real
property or interest in real property as designated in a transfer
on death designation affidavit provided in section 5302.22 of the
Revised Code shall be recorded by presenting to the county auditor
of the county in which the real property is located and filing
with the county recorder of that county an affidavit of
confirmation executed by any transfer on death beneficiary to whom
the transfer is made. The affidavit of confirmation shall be
verified before a person authorized to administer oaths and shall
be accompanied by a certified copy of the death certificate for
the deceased owner. The affidavit of confirmation shall contain
all of the following information:
(1) The name and address of each transfer on death
beneficiary who survived the deceased owner or that is in
existence on the date of death of the deceased owner. If a named
beneficiary was designated as a transfer on death beneficiary
solely in that person's capacity as a trustee of a trust and that
trustee subsequently has been replaced by a successor trustee, the
affidavit of confirmation shall include the name and address of
the successor trustee and shall be accompanied by a copy of the
recorded successor trustee affidavit described in section 5302.171
of the Revised Code.
(2) The date of death of the deceased owner;
(3) A description of the subject real property or interest in
real property;
(4) The name of each transfer on death beneficiary who has
not survived the deceased owner or that is not in existence on the
date of death of the deceased owner.
(B) The affidavit of confirmation shall be accompanied by a
certified copy of the death certificate for each transfer on death
beneficiary who has not survived the deceased owner.
(C) The county recorder shall make an index reference in the
record of deeds to any affidavit of confirmation filed with the
county recorder under this section.
(D) Upon the death of any individual holding real property or
an interest in real property that is the subject of a transfer on
death designation affidavit as provided in section 5302.22 of the
Revised Code, if the title to the real property is registered
pursuant to Chapter 5309. of the Revised Code, the procedure for
the transfer of the interest of the deceased owner to the transfer
on death beneficiary or beneficiaries designated in the affidavit
shall be pursuant to section 5309.081 of the Revised Code.
(E) Any person who knowingly makes any false statement in an
affidavit of confirmation is guilty of falsification under
division (A)(6) of section 2921.13 of the Revised Code.
Sec. 5302.23. (A) Any deed affidavit containing language
that shows a
clear intent to designate a transfer on death
beneficiary shall be
liberally construed to do so.
(B) Real property or an interest in real property that is the
subject
to of a transfer on death beneficiary designation
affidavit as provided in section
5302.22 of the Revised Code or as
described in division (A)
of this section has all of the following
characteristics and
ramifications:
(1) An interest of a deceased owner shall be transferred to
the transfer on death beneficiaries who are identified in the deed
affidavit by name
and who survive the deceased owner or that are
in existence on the date of the
deceased owner's
death. If there
is a designation of more than one transfer on
death beneficiary,
the beneficiaries shall take title in to the
interest in equal
shares as tenants in common, unless the deceased owner has
specifically designated other than equal shares or has designated
that the beneficiaries take title as survivorship tenants, subject
to division (B)(3) of this section.
If a transfer on death
beneficiary does not survive the deceased owner or is
not in
existence on the date of the deceased owner's death, and the
deceased
owner has designated one or more persons as contingent
transfer on death
beneficiaries as provided in division (B)(2) of
this section, the
designated contingent transfer on death
beneficiaries shall take the same
interest that would have passed
to the transfer on death beneficiary had that
transfer on death
beneficiary survived the deceased owner or been in existence
on
the date of the deceased owner's death.
If none of the designated
transfer on death beneficiaries survives the
deceased owner or is
in
existence on the date of the deceased owner's death and no
contingent transfer
on death beneficiaries have been designated
or, have survived the deceased
owner, or are in existence on the
date of death of the deceased owner, the interest of the deceased
owner shall be
distributed as part of the probate estate of the
deceased owner of
the interest. If there are two or more transfer
on death beneficiaries and the deceased owner has designated that
title to the interest in the real property be taken by those
beneficiaries as survivorship tenants, no designated contingent
transfer on death beneficiaries shall take title to the interest
unless none of the transfer on death beneficiaries survives the
deceased owner on the date of death of the deceased owner.
(2) A transfer on death deed designation affidavit may
contain a designation of one or
more persons as contingent
transfer on death beneficiaries, who shall
take the interest of
the deceased owner that would otherwise have passed to
the
designated transfer on death beneficiary if that named designated
transfer
on death beneficiary does not survive the deceased owner
or is not in
existence on the date of
death of the deceased owner.
Persons designated as contingent
transfer on death beneficiaries
shall be identified in the deed affidavit by
name.
(3) Any transfer on death beneficiary or contingent transfer
on death beneficiary may be a natural or legal person, including,
but not limited to, a bank as trustee of a trust, except that if
two or more transfer on death beneficiaries are designated as
survivorship tenants, all of those beneficiaries shall be natural
persons and if two or more contingent transfer on death
beneficiaries are designated as survivorship tenants, all of those
contingent beneficiaries shall be natural persons. A natural
person who is designated a transfer on death beneficiary or
contingent transfer on death beneficiary solely in that natural
person's capacity as a trustee of a trust is not considered a
natural person for purposes of designating the transfer on death
beneficiaries or contingent transfer on death beneficiaries as
survivorship tenants under division (B)(3) of this section.
(4) The designation of a transfer on death beneficiary has no
effect on the present ownership of real property, and a person
designated as a
transfer on death beneficiary has no
interest in
the real property until the death of the owner of the
interest.
(4)(5) The designation in a deed transfer on death
designation affidavit of any transfer on death
beneficiary may be
revoked or changed at any time, without the consent
of that
designated transfer on death beneficiary, by the owner
of the
interest, by the surviving survivorship tenants of the interest,
or by the remaining tenant by the entireties of the interest, by
executing in
accordance with Chapter 5301. of the Revised Code and
recording, prior to the death of the owner of the interest, of the
surviving survivorship tenants of the interest, or of the
remaining tenant by the entireties of the interest, as the case
may be, a
deed conveying the grantor's entire, separate interest
in the real property to
one or more persons, including the
grantor, with or without the designation of
another transfer on
death beneficiary new transfer on death designation affidavit
pursuant to section 5302.22 of the Revised Code stating the
revocation or change in that designation. The new transfer on
death designation affidavit shall automatically supersede and
revoke all prior recorded transfer on death designation affidavits
with respect to the real property or the interest in real property
identified in the new affidavit, provided that the prior recorded
affidavit was executed before the later recorded affidavit.
(5)(6) A fee simple title
or any fractional interest in a fee
simple title
may be subjected to a transfer on death beneficiary
designation.
(6)(7)(a) A designated transfer on death beneficiary takes
only the
interest that the deceased owner or owners of the
interest held on the date of death,
subject to all encumbrances,
reservations, and exceptions.
(7)(b) If the owners hold title to the interest in a
survivorship tenancy, the death of all except the last
survivorship tenant automatically terminates and nullifies any
transfer on death beneficiary designations made solely by the
deceased survivorship tenant or tenants without joinder by the
last surviving survivorship tenant. The termination or
nullification of any transfer on death beneficiary designations
under division (B)(7)(b) of this section is effective as of the
date of death of a deceased survivorship tenant. No affirmative
act of revocation is required of the last surviving survivorship
tenant for the termination or nullification of the transfer on
death beneficiary designations to occur as described in division
(B)(7)(b) of this section. If the last surviving survivorship
tenant dies with no transfer on death beneficiary designation, the
entire interest of that last surviving survivorship tenant shall
be distributed as part of the tenant's probate estate.
(c) If the owners hold title to the interest in a tenancy by
the entireties, the death of the first tenant by the entireties
automatically terminates and nullifies any transfer on death
beneficiary designations made solely by that deceased first tenant
without joinder by the remaining tenant by the entireties. The
termination or nullification of any transfer on death beneficiary
designations under division (B)(7)(c) of this section is effective
as of the date of death of the first tenant by the entireties. No
affirmative act of revocation is required of the remaining tenant
by the entireties for the termination or nullification of the
transfer on death beneficiary designations to occur as described
in division (B)(7)(c) of this section. If the remaining tenant by
the entireties dies with no transfer on death beneficiary
designation, the entire interest of that remaining tenant shall be
distributed as part of the tenant's probate estate.
(8) No rights of any lienholder, including, but not limited
to, any
mortgagee, judgment creditor, or mechanic's lien holder,
shall be
affected by the designation of a transfer on death
beneficiary pursuant
to this section and section 5302.22 of the
Revised Code. If any
lienholder takes action to enforce the lien,
by foreclosure or
otherwise through a court proceeding, it is not
necessary to join
the any transfer on death beneficiary as a party
defendant in the
action unless the transfer on death beneficiary
has another
interest in the real property that is currently
vested.
(8)(9) Any transfer on death of real property or of an
interest in real
property that results from a deed transfer on
death designation affidavit designating a transfer on death
beneficiary is not testamentary. That transfer on death shall
supersede any attempted testate or intestate transfer of that real
property or interest in real property.
(10) The execution and recording of a transfer on death
designation affidavit shall be effective to terminate the
designation of a transfer on death beneficiary in a transfer on
death deed involving the same real property or interest in real
property and recorded prior to the effective date of this section.
(11) The execution and recording of a transfer on death
designation affidavit shall be effective to bar the vesting of any
rights of dower in a subsequent spouse of the owner of the real
property who executed that affidavit unless the affidavit is
revoked or changed.
Sec. 5302.24. Sections 5302.22, 5302.222, and 5302.23 of the
Revised Code do not affect any deed that was executed and recorded
prior to the effective date of this section, or any transfer on
death beneficiary designation made, pursuant to section 5302.22 of
the Revised Code as it existed prior to the effective date of this
section. If that deed or designation is valid on the day prior to
the effective date of this section, the deed or designation
continues to be valid on and after the effective date of this
section. A grantee of that deed need not execute a transfer on
death designation affidavit that designates the same transfer on
death beneficiary or beneficiaries as in the deed unless the
grantee chooses to do so.
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. Division (A)(1)(c) of this section does not
authorize
a
fiduciary who disclaims fiduciary rights, privileges,
powers,
and immunities to cause the rights of
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, 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, 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
eighteen
years
of age or is no longer an incompetent, without
tendering or
repaying any benefit received while the disclaimant
was under
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,
including, but not limited to, a transfer on death designation
affidavit pursuant to section 5302.22 of the Revised Code,
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. If the interest
disclaimed is created by a transfer on death designation affidavit
pursuant to section 5302.22 of the Revised Code, the disclaimer
instrument shall be filed with the county recorder of the county
in which the real property that is the subject of that affidavit
is located.
(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) If a donative instrument expressly provides
for the
distribution of property, part of
property, or interest in
property if there is a disclaimer,
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 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) Neither a fiduciary's application for appointment or
assumption
of duties as a fiduciary nor a
beneficiary's
application for appointment as a personal
representative or
fiduciary waives or 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 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 sections 5302.01, 5302.02, 5302.22,
5302.221, 5302.23, and 5815.36 of the Revised Code are hereby
repealed.
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