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Am. S. B. No. 117 As Passed by the SenateAs Passed by the Senate
129th General Assembly | Regular Session | 2011-2012 |
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Senators Seitz, Schiavoni
Cosponsors:
Senators Kearney, Wagoner, Bacon, Brown, Coley, Faber, Gillmor, Grendell, Hughes, Obhof, Oelslager, Patton, Smith, Turner, Wilson
A BILL
To amend sections 1337.092, 1337.12, 2101.24,
2109.21, 2111.02, 2111.12, 2111.121, 5301.071,
5747.02, 5801.10, 5804.12, 5808.14, 5808.17, and
5810.13; to enact new section 2107.52 and sections
1337.21 to 1337.64, 3793.31 to 3793.39, 5808.18,
5808.19, 5809.031, and 5810.14; and to repeal
sections 1337.09, 1337.091, 1337.093, 1337.18,
1337.19, 1337.20, and 2107.52 of the Revised Code
to adopt the Uniform Power of Attorney Act; to
modify a trustee's duties with respect to life
insurance policies, specify a trustee's power to
distribute trust principal in further trust,
provide for the titling of assets in trust form,
and make other changes in the Trust Code; to
modify the anti-lapse provisions regarding wills
and adopt anti-lapse provisions applicable to
trusts; to provide a mechanism for a probate court
to order a person who suffers from alcohol and
other drug abuse to undergo treatment; to provide
a rule of construction interpreting federal estate
tax and generation-skipping transfer tax formulas
in wills and trusts due to the repeal of those
taxes; and to declare an emergency.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 1337.092, 1337.12, 2101.24, 2109.21,
2111.02, 2111.12, 2111.121, 5301.071, 5747.02, 5801.10, 5804.12,
5808.14, 5808.17, and 5810.13 be amended and new section 2107.52
and sections 1337.21, 1337.22, 1337.23, 1337.24, 1337.25, 1337.26,
1337.27, 1337.28, 1337.29, 1337.30, 1337.31, 1337.32, 1337.33,
1337.34, 1337.35, 1337.36, 1337.37, 1337.38, 1337.39, 1337.40,
1337.41, 1337.42, 1337.43, 1337.44, 1337.45, 1337.46, 1337.47,
1337.48, 1337.49, 1337.50, 1337.51, 1337.52, 1337.53, 1337.54,
1337.55, 1337.56, 1337.57, 1337.58, 1337.59, 1337.60, 1337.61,
1337.62, 1337.63, 1337.64, 3793.31, 3793.32, 3793.33, 3793.34,
3793.35, 3793.36, 3793.37, 3793.38, 3793.39, 5808.18, 5808.19,
5809.031, and 5810.14 of the Revised Code be enacted to read as
follows:
Sec. 1337.092. (A) If an attorney in fact enters into a
contract in the representative capacity of the attorney in fact,
if the contract is within the authority of the attorney in fact,
and if the attorney in fact discloses in the contract that it is
being entered into in the representative capacity of the attorney
in fact, the attorney in fact is not personally liable on the
contract, unless the contract otherwise specifies. If the words or
initialism "attorney in fact," "as attorney in fact," "AIF,"
"power of attorney," "POA," or any other word or words or
initialism indicating representative capacity as an attorney in
fact are included in a contract following the name or signature of
an attorney in fact, the inclusion is sufficient disclosure for
purposes of this division that the contract is being entered into
in the attorney in fact's representative capacity as attorney in
fact.
(B) An attorney in fact is not personally liable for a debt
of the attorney in fact's principal, unless one or more of the
following applies:
(1) The attorney in fact agrees to be personally responsible
for the debt.
(2) The debt was incurred for the support of the principal,
and the attorney in fact is liable for that debt because of
another legal relationship that gives rise to or results in a duty
of support relative to the principal.
(3) The negligence of the attorney in fact gave rise to or
resulted in the debt.
(4) An act of the attorney in fact that was beyond the
attorney in fact's authority gave rise to or resulted in the debt.
(5) An agreement to assist in the recovery of funds under
section 169.13 of the Revised Code was the subject of the power of
attorney that gave rise to or resulted in the debt.
(C) This section applies but is not limited to, and the terms
"power of attorney" and "attorney in fact" include but are not
limited to, an agency agreement and an agent under an agency
agreement.
Sec. 1337.12. (A)(1) An adult who is of sound mind
voluntarily may create a valid durable power of attorney for
health care by executing a durable power of attorney, in
accordance with division (B) of section 1337.09 1337.24 of the
Revised Code, that authorizes an attorney in fact as described in
division (A)(2) of this section to make health care decisions for
the principal at any time that the attending physician of the
principal determines that the principal has lost the capacity to
make informed health care decisions for the principal. Except as
otherwise provided in divisions (B) to (F) of section 1337.13 of
the Revised Code, the authorization may include the right to give
informed consent, to refuse to give informed consent, or to
withdraw informed consent to any health care that is being or
could be provided to the principal. Additionally, to be valid, a
durable power of attorney for health care shall satisfy both of
the following:
(a) It shall be signed at the end of the instrument by the
principal and shall state the date of its execution.
(b) It shall be witnessed in accordance with division (B) of
this section or be acknowledged by the principal in accordance
with division (C) of this section.
(2) Except as otherwise provided in this division, a durable
power of attorney for health care may designate any competent
adult as the attorney in fact. The attending physician of the
principal and an administrator of any nursing home in which the
principal is receiving care shall not be designated as an attorney
in fact in, or act as an attorney in fact pursuant to, a durable
power of attorney for health care. An employee or agent of the
attending physician of the principal and an employee or agent of
any health care facility in which the principal is being treated
shall not be designated as an attorney in fact in, or act as an
attorney in fact pursuant to, a durable power of attorney for
health care, except that these limitations do not preclude a
principal from designating either type of employee or agent as the
principal's attorney in fact if the individual is a competent
adult and related to the principal by blood, marriage, or
adoption, or if the individual is a competent adult and the
principal and the individual are members of the same religious
order.
(3) A durable power of attorney for health care shall not
expire, unless the principal specifies an expiration date in the
instrument. However, when a durable power of attorney contains an
expiration date, if the principal lacks the capacity to make
informed health care decisions for the principal on the expiration
date, the instrument shall continue in effect until the principal
regains the capacity to make informed health care decisions for
the principal.
(B) If witnessed for purposes of division (A)(1)(b) of this
section, a durable power of attorney for health care shall be
witnessed by at least two individuals who are adults and who are
not ineligible to be witnesses under this division. Any person who
is related to the principal by blood, marriage, or adoption, any
person who is designated as the attorney in fact in the
instrument, the attending physician of the principal, and the
administrator of any nursing home in which the principal is
receiving care are ineligible to be witnesses.
The witnessing of a durable power of attorney for health care
shall involve the principal signing, or acknowledging the
principal's signature, at the end of the instrument in the
presence of each witness. Then, each witness shall subscribe the
witness's signature after the signature of the principal and, by
doing so, attest to the witness's belief that the principal
appears to be of sound mind and not under or subject to duress,
fraud, or undue influence. The signatures of the principal and the
witnesses under this division are not required to appear on the
same page of the instrument.
(C) If acknowledged for purposes of division (A)(1)(b) of
this section, a durable power of attorney for health care shall be
acknowledged before a notary public, who shall make the
certification described in section 147.53 of the Revised Code and
also shall attest that the principal appears to be of sound mind
and not under or subject to duress, fraud, or undue influence.
(D)(1) If a principal has both a valid durable power of
attorney for health care and a valid declaration, division (B) of
section 2133.03 of the Revised Code applies. If a principal has
both a valid durable power of attorney for health care and a DNR
identification that is based upon a valid declaration and if the
declaration supersedes the durable power of attorney for health
care under division (B) of section 2133.03 of the Revised Code,
the DNR identification supersedes the durable power of attorney
for health care to the extent of any conflict between the two. A
valid durable power of attorney for health care supersedes any DNR
identification that is based upon a do-not-resuscitate order that
a physician issued for the principal which is inconsistent with
the durable power of attorney for health care or a valid decision
by the attorney in fact under a durable power of attorney.
(2) As used in division (D) of this section:
(a) "Declaration" has the same meaning as in section 2133.01
of the Revised Code.
(b) "Do-not-resuscitate order" and "DNR identification" have
the same meanings as in section 2133.21 of the Revised Code.
Sec. 1337.21. Sections 1337.21 to 1337.64 of the Revised
Code may be cited as the uniform power of attorney act.
Sec. 1337.22. As used in sections 1337.21 to 1337.64 of the
Revised Code:
(A) "Agent" means a person granted authority to act for a
principal under a power of attorney, whether denominated an agent,
attorney in fact, or otherwise. "Agent" includes an original
agent, coagent, successor agent, and a person to which an agent's
authority is delegated.
(B) "Durable," with respect to a power of attorney, means not
terminated by the principal's incapacity.
(C) "Electronic" means relating to technology having
electrical, digital, magnetic, wireless, optical, electromagnetic,
or similar capabilities.
(D) "Good faith" means honesty in fact.
(E) "Incapacity" means inability of an individual to manage
property or business affairs for either of the following reasons:
(1) The individual has an impairment in the ability to
receive and evaluate information or make or communicate decisions
even with the use of technological assistance.
(2) The individual is any of the following:
(b) Detained, including incarcerated in a penal system;
(c) Outside the United States and unable to return.
(F) "Person" means an individual, corporation, business
trust, estate, trust, partnership, limited liability company,
association, joint venture, public corporation, government or
governmental subdivision, agency, or instrumentality, or any other
legal or commercial entity.
(G) "Power of attorney" means a writing or other record that
grants authority to an agent to act in the place of the principal,
whether or not the term power of attorney is used.
(H) "Presently exercisable general power of appointment,"
with respect to property or a property interest subject to a power
of appointment, means power exercisable at the time in question to
vest absolute ownership in the principal individually, the
principal's estate, the principal's creditors, or the creditors of
the principal's estate. The term includes a power of appointment
not exercisable until the occurrence of a specified event, the
satisfaction of an ascertainable standard, or the passage of a
specified period only after the occurrence of the specified event,
the satisfaction of the ascertainable standard, or the passage of
the specified period. The term does not include a power
exercisable in a fiduciary capacity or only by will.
(I) "Principal" means an individual who grants authority to
an agent in a power of attorney.
(J) "Property" means anything that may be the subject of
ownership, whether real or personal, or legal or equitable, or any
interest or right therein.
(K) "Record" means information that is inscribed on a
tangible medium or that is stored in an electronic or other medium
and is retrievable in perceivable form.
(L) "Sign" means, with present intent to authenticate or
adopt a record, to execute or adopt a tangible symbol or to attach
to or logically associate with the record an electronic sound,
symbol, or process.
(M) "State" means a state of the United States, the District
of Columbia, Puerto Rico, the United States Virgin Islands, or any
territory or insular possession subject to the jurisdiction of the
United States.
(N) "Stocks and bonds" means stocks, bonds, mutual funds, and
all other types of securities and financial instruments, whether
held directly, indirectly, or in any other manner, but does not
include commodity futures contracts or call or put options on
stocks or stock indexes.
Sec. 1337.23. Sections 1337.21 to 1337.64 of the Revised
Code apply to all powers of attorney except the following:
(A) A power to the extent it is coupled with an interest in
the subject of the power, including a power given to or for the
benefit of a creditor in connection with a credit transaction;
(B) A power to make health-care decisions;
(C) A proxy or other delegation to exercise voting rights or
management rights with respect to an entity;
(D) A power created on a form prescribed by a government or
governmental subdivision, agency, or instrumentality for a
governmental purpose.
Sec. 1337.24. A power of attorney created under sections
1337.21 to 1337.64 of the Revised Code is durable unless it
expressly provides that it is terminated by the incapacity of the
principal.
Sec. 1337.25. A power of attorney must be signed by the
principal or in the principal's conscious presence by another
individual directed by the principal to sign the principal's name
on the power of attorney. A signature on a power of attorney is
presumed to be genuine if the principal acknowledges the signature
before a notary public or other individual authorized by law to
take acknowledgments.
Sec. 1337.26. (A) A power of attorney executed in this state
on or after the effective date of this section is valid if its
execution complies with section 1337.25 of the Revised Code.
(B) A power of attorney executed in this state before the
effective date of this section is valid if its execution complied
with the law of this state as it existed at the time of execution.
(C) A power of attorney executed other than in this state is
valid in this state if, when the power of attorney was executed,
the execution complied with the law of the jurisdiction that
determines the meaning and effect of the power of attorney
pursuant to section 1337.27 of the Revised Code or with the
requirements for a military power of attorney pursuant to 10
U.S.C. 1044b.
(D) Except as otherwise provided by statute other than
sections 1337.21 to 1337.64 of the Revised Code, a photocopy or
electronically transmitted copy of an original power of attorney
has the same effect as the original.
Sec. 1337.27. The meaning and effect of a power of attorney
is determined by the law of the jurisdiction indicated in the
power of attorney and, in the absence of an indication of
jurisdiction, by the law of the jurisdiction in which the power of
attorney was executed.
Sec. 1337.28. (A) In a power of attorney, a principal may
nominate a guardian of the principal's person, estate, or both and
may nominate a guardian of the person, the estate, or both of one
or more of the principal's minor children, whether born at the
time of the execution of the power of attorney or afterward. The
nomination is for consideration by a court if proceedings for the
appointment of a guardian for the principal's person, estate, or
both or if proceedings for the appointment of a guardian of the
person, the estate, or both of one or more of the principal's
minor children are commenced at a later time. The principal may
authorize the person nominated as guardian or the agent to
nominate a successor guardian for consideration by a court. Except
for good cause shown or disqualification, the court shall make its
appointment in accordance with the principal's most recent
nomination. Nomination of a person as a guardian or successor
guardian of the person, the estate, or both of one or more of the
principal's minor children under this division, and any subsequent
appointment of the guardian or successor guardian as guardian
under section 2111.02 of the Revised Code, does not vacate the
jurisdiction of any other court that previously may have exercised
jurisdiction over the person of the minor.
(B) The principal may direct that bond be waived for a person
nominated as guardian or as a successor guardian.
(C) If, after a principal executes a power of attorney, a
court appoints a guardian of the principal's estate or other
fiduciary charged with the management of some or all of the
principal's property, the agent is accountable to the fiduciary as
well as to the principal. The power of attorney is not terminated
and the agent's authority continues unless limited, suspended, or
terminated by the court after notice to the agent and upon a
finding that the limitation, suspension, or termination would be
in the best interest of the principal.
(D) A power of attorney that contains the nomination of a
person to be the guardian of the person, the estate, or both of
one or more of the principal's minor children under this division
may be filed with the probate court for safekeeping, and the
probate court shall designate the nomination as the nomination of
a standby guardian.
Sec. 1337.29. (A) A power of attorney is effective when
executed unless the principal provides in the power of attorney
that it becomes effective at a future date or upon the occurrence
of a future event or contingency.
(B) If a power of attorney becomes effective upon the
occurrence of a future event or contingency, the principal, in the
power of attorney, may authorize one or more persons to determine
in a writing or other record that the event or contingency has
occurred.
(C) If a power of attorney becomes effective upon the
principal's incapacity and the principal has not authorized a
person to determine whether the principal is incapacitated, or the
person authorized is unable or unwilling to make the
determination, the power of attorney becomes effective upon one of
the following determinations made in a writing or other record:
(1) A determination by a physician who has examined the
principal or a licensed psychologist who has evaluated the
principal that the principal is incapacitated within the meaning
of division (E)(1) of section 1337.22 of the Revised Code;
(2) A determination by an attorney at law, a judge, or an
appropriate governmental official that the principal is
incapacitated within the meaning of division (E)(2) of section
1337.22 of the Revised Code.
(D) A person authorized by the principal in the power of
attorney to determine that the principal is incapacitated may act
as the principal's personal representative pursuant to 42 U.S.C.
1320d to 1320d-8, and applicable regulations, to obtain access to
the principal's health-care information and communicate with the
principal's health-care provider.
Sec. 1337.30. (A) A power of attorney terminates when any of
the following occurs:
(2) The principal becomes incapacitated, if the power of
attorney is not durable;
(3) The principal revokes the power of attorney;
(4) The power of attorney provides that it terminates;
(5) The purpose of the power of attorney is accomplished;
(6) The principal revokes the agent's authority or the agent
dies, becomes incapacitated, or resigns, and the power of attorney
does not provide for another agent to act under the power of
attorney.
(B) An agent's authority terminates when any of the following
occurs:
(1) The principal revokes the authority;
(2) The agent dies, becomes incapacitated, or resigns;
(3) An action is filed for the divorce, dissolution, or
annulment of the agent's marriage to the principal or their legal
separation, unless the power of attorney otherwise provides;
(4) The power of attorney terminates.
(C) Unless the power of attorney otherwise provides, an
agent's authority is exercisable until the authority terminates
under division (B) of this section, notwithstanding a lapse of
time since the execution of the power of attorney.
(D) Termination of an agent's authority or of a power of
attorney is not effective as to the agent or another person that,
without actual knowledge of the termination, acts in good faith
under the power of attorney. An act so performed, unless otherwise
invalid or unenforceable, binds the principal and the principal's
successors in interest.
(E) Incapacity of the principal of a power of attorney that
is not durable does not revoke or terminate the power of attorney
as to an agent or other person that, without actual knowledge of
the incapacity, acts in good faith under the power of attorney. An
act so performed, unless otherwise invalid or unenforceable, binds
the principal and the principal's successors in interest.
(F) The execution of a power of attorney does not revoke a
power of attorney previously executed by the principal unless the
subsequent power of attorney provides that the previous power of
attorney is revoked or that all other powers of attorney are
revoked.
Sec. 1337.31. (A) A principal may designate two or more
persons to act as coagents. Unless the power of attorney otherwise
provides, each coagent may exercise its authority independently.
(B) A principal may designate one or more successor agents to
act if an agent resigns, dies, becomes incapacitated, is not
qualified to serve, or declines to serve. A principal may grant
authority to designate one or more successor agents to an agent or
other person designated by name, office, or function. Unless the
power of attorney otherwise provides, a successor agent has the
same authority as that granted to the original agent and may not
act until all predecessor agents have resigned, died, become
incapacitated, are no longer qualified to serve, or have declined
to serve.
(C) Except as otherwise provided in the power of attorney and
division (D) of this section, an agent that does not participate
in or conceal a breach of fiduciary duty committed by another
agent, including a predecessor agent, is not liable for the
actions of the other agent.
(D) An agent that has actual knowledge of a breach or
imminent breach of fiduciary duty by another agent shall notify
the principal and, if the principal is incapacitated, take any
action reasonably appropriate in the circumstances to safeguard
the principal's best interest. An agent that fails to notify the
principal or take action as required by this division is liable
for the reasonably foreseeable damages that could have been
avoided if the agent had notified the principal or taken action as
required by this division.
Sec. 1337.32. Unless the power of attorney otherwise
provides, an agent is entitled to reimbursement of expenses
reasonably incurred on behalf of the principal and to compensation
that is reasonable under the circumstances.
Sec. 1337.33. Except as otherwise provided in the power of
attorney, a person accepts appointment as an agent under a power
of attorney by exercising authority or performing duties as an
agent or by any other assertion or conduct indicating acceptance.
Sec. 1337.34. (A) Notwithstanding provisions in the power of
attorney, an agent that has accepted appointment shall do all of
the following:
(1) Act in accordance with the principal's reasonable
expectations to the extent actually known by the agent and,
otherwise, in the principal's best interest;
(3) Act only within the scope of authority granted in the
power of attorney;
(4) Attempt to preserve the principal's estate plan to the
extent actually known by the agent if preserving the plan is
consistent with the principal's best interest based on all
relevant factors, including all of the following:
(a) The value and nature of the principal's property;
(b) The principal's foreseeable obligations and need for
maintenance;
(c) Minimization of taxes, including income, estate,
inheritance, generation-skipping transfer, and gift taxes;
(d) Eligibility for a benefit, a program, or assistance under
a statute or regulation.
(B) Except as otherwise provided in the power of attorney, an
agent that has accepted appointment shall do all of the following:
(1) Act loyally for the principal's benefit;
(2) Act so as not to create a conflict of interest that
impairs the agent's ability to act impartially in the principal's
best interest;
(3) Act with the care, competence, and diligence ordinarily
exercised by agents in similar circumstances;
(4) Keep a record of all receipts, disbursements, and
transactions made on behalf of the principal;
(5) Cooperate with a person that has authority to make
health-care decisions for the principal to carry out the
principal's reasonable expectations to the extent actually known
by the agent and, otherwise, act in the principal's best interest.
(C) An agent that acts in good faith is not liable to any
beneficiary of the principal's estate plan for failure to preserve
the plan.
(D) An agent that acts with care, competence, and diligence
for the best interest of the principal is not liable solely
because the agent also benefits from the act or has an individual
or conflicting interest in relation to the property or affairs of
the principal.
(E) If an agent is selected by the principal because of
special skills or expertise possessed by the agent or in reliance
on the agent's representation that the agent has special skills or
expertise, the special skills or expertise must be considered in
determining whether the agent has acted with care, competence, and
diligence under the circumstances.
(F) Absent a breach of duty to the principal, an agent is not
liable if the value of the principal's property declines.
(G) An agent that exercises authority to delegate to another
person the authority granted by the principal or that engages
another person on behalf of the principal is not liable for an
act, error of judgment, or default of that person if the agent
exercises care, competence, and diligence in selecting and
monitoring the person.
(H) Except as otherwise provided in the power of attorney, an
agent is not required to disclose receipts, disbursements, or
transactions conducted on behalf of the principal unless ordered
by a court or requested by the principal, a guardian, a
conservator, another fiduciary acting for the principal, a
governmental agency having authority to protect the welfare of the
principal, or, upon the death of the principal, by the personal
representative or successor in interest of the principal's estate.
If so requested, within thirty days the agent shall comply with
the request or provide a writing or other record substantiating
why additional time is needed and shall comply with the request
within an additional thirty days.
Sec. 1337.35. A provision in a power of attorney relieving
an agent of liability for breach of duty is binding on the
principal and the principal's successors in interest except to the
extent that either of the following applies:
(A) The provision relieves the agent of liability for breach
of duty committed dishonestly, with an improper motive, or with
reckless indifference to the purposes of the power of attorney or
the best interest of the principal.
(B) The provision was inserted as a result of an abuse of a
confidential or fiduciary relationship with the principal.
Sec. 1337.36. (A) Any of the following persons may petition
a court to construe a power of attorney or review the agent's
conduct and grant appropriate relief:
(1) The principal or the agent;
(2) A guardian, conservator, or other fiduciary acting for
the principal, including an executor or administrator of the
estate of a deceased principal;
(3) A person authorized to make health-care decisions for the
principal;
(4) The principal's spouse, parent, or descendant;
(5) An individual who would qualify as a presumptive heir of
the principal;
(6) A person named as a beneficiary to receive any property,
benefit, or contractual right on the principal's death or as a
beneficiary of a trust created by or for the principal that has a
financial interest in the principal's estate;
(7) A governmental agency having regulatory authority to
protect the welfare of the principal;
(8) The principal's caregiver or another person that
demonstrates sufficient interest in the principal's welfare;
(9) A person asked to accept the power of attorney.
(B) Upon motion by the principal, the court shall dismiss a
petition filed under this section, unless the court finds that the
principal lacks capacity to revoke the agent's authority or the
power of attorney.
Sec. 1337.37. An agent that violates sections 1337.21 to
1337.64 of the Revised Code is liable to the principal or the
principal's successors in interest for the amount required to
restore the value of the principal's property to what it would
have been had the violation not occurred and the amount required
to reimburse the principal or the principal's successors in
interest for the attorney's fees and costs paid on the agent's
behalf.
Sec. 1337.38. Unless the power of attorney provides a
different method for an agent's resignation, an agent may resign
by giving notice to the principal and, if the principal is
incapacitated, to whichever of the following applies:
(A) The guardian, if one has been appointed for the
principal, and any coagent or successor agent;
(B) If there is no person described in division (A) of this
section, to any of the following:
(1) The principal's caregiver;
(2) Another person reasonably believed by the agent to have
sufficient interest in the principal's welfare;
(3) A governmental agency having authority to protect the
welfare of the principal.
Sec. 1337.39. Unless displaced by a provision of sections
1337.21 to 1337.64 of the Revised Code, the principles of law and
equity supplement those sections.
Sec. 1337.40. In the event of a conflict between any
provision of sections 1337.21 to 1337.64 of the Revised Code and
any other provision of law applicable to financial institutions or
other entities, the other provision of law controls.
Sec. 1337.41. The remedies provided under sections 1337.21
to 1337.64 of the Revised Code are not exclusive and do not
abrogate any right or remedy under any other provision of law of
this state.
Sec. 1337.42. (A) An agent under a power of attorney may do
any of the following on behalf of the principal or with the
principal's property only if the power of attorney expressly
grants the agent the authority and if exercise of the authority is
not otherwise prohibited by another agreement or instrument to
which the authority or property is subject, and, with respect to a
revocable trust of which the principal was the settlor, if the
trust agreement expressly authorizes the agent to exercise the
principal's powers with respect to the revocation, amendment, or
distribution:
(1) Create, amend, revoke, or terminate an inter vivos trust
to the extent permitted by section 5801.05 of the Revised Code or
any other provision of Title LVIII of the Revised Code;
(3) Create or change rights of survivorship;
(4) Create or change a beneficiary designation;
(5) Delegate authority granted under the power of attorney;
(6) Waive the principal's right to be a beneficiary of a
joint and survivor annuity, including a survivor benefit under a
retirement plan;
(7) Exercise fiduciary powers that the principal has
authority to delegate.
(B) Notwithstanding a grant of authority to do an act
described in division (A) of this section, unless the power of
attorney otherwise provides, an agent that is not an ancestor,
spouse, or descendant of the principal may not exercise authority
under a power of attorney to create in the agent, or in an
individual to whom the agent owes a legal obligation of support,
an interest in the principal's property, whether by gift, right of
survivorship, beneficiary designation, disclaimer, or otherwise.
(C) Subject to divisions (A), (B), (D), and (E) of this
section, if a power of attorney grants to an agent authority to do
all acts that a principal could do, the agent has the general
authority described in sections 1337.45 to 1337.57 of the Revised
Code.
(D) Unless the power of attorney otherwise provides, a grant
of authority to make a gift is subject to section 1337.58 of the
Revised Code.
(E) Subject to divisions (A), (B), and (D) of this section,
if the subjects over which authority is granted in a power of
attorney are similar or overlap, the broadest authority controls.
(F) Authority granted in a power of attorney is exercisable
with respect to property that the principal has when the power of
attorney is executed or acquires later, whether or not the
property is located in this state and whether or not the authority
is exercised or the power of attorney is executed in this state.
(G) An act performed by an agent pursuant to a power of
attorney has the same effect and inures to the benefit of and
binds the principal and the principal's successors in interest as
if the principal had performed the act.
Sec. 1337.43. (A) An agent has authority described in
sections 1337.42 to 1337.58 of the Revised Code if the power of
attorney refers to general authority with respect to the
descriptive term for the subjects stated in sections 1337.45 to
1337.58 of the Revised Code or cites the section of the Revised
Code in which the authority is described.
(B) A reference in a power of attorney to general authority
with respect to the descriptive term for a subject in sections
1337.45 to 1337.58 of the Revised Code or a citation to any of
those sections incorporates the entire section as if it were set
out in full in the power of attorney.
(C) A principal may modify authority incorporated by
reference.
Sec. 1337.44. Except as otherwise provided in the power of
attorney, by executing a power of attorney that incorporates by
reference a subject described in sections 1337.45 to 1337.58 of
the Revised Code or that grants to an agent authority to do all
acts that a principal could do pursuant to division (C) of section
1337.42 of the Revised Code, a principal authorizes the agent,
with respect to that subject, to do all of the following:
(A) Demand, receive, and obtain by litigation or otherwise,
money or another thing of value to which the principal is, may
become, or claims to be entitled, and conserve, invest, disburse,
or use anything so received or obtained for the purposes intended;
(B) Contract in any manner with any person, on terms
agreeable to the agent, to accomplish a purpose of a transaction
and perform, rescind, cancel, terminate, reform, restate, release,
or modify the contract or another contract made by or on behalf of
the principal;
(C) Execute, acknowledge, seal, deliver, file, or record any
instrument or communication the agent considers desirable to
accomplish a purpose of a transaction, including creating at any
time a schedule listing some or all of the principal's property
and attaching it to the power of attorney;
(D) Initiate, participate in, submit to alternative dispute
resolution, settle, oppose, or propose or accept a compromise with
respect to a claim existing in favor of or against the principal
or intervene in litigation relating to the claim;
(E) Seek on the principal's behalf the assistance of a court
or other governmental agency to carry out an act authorized in the
power of attorney;
(F) Engage, compensate, and discharge an attorney,
accountant, discretionary investment manager, expert witness, or
other advisor;
(G) Prepare, execute, and file a record, report, or other
document to safeguard or promote the principal's interest under a
statute or regulation;
(H) Communicate with any representative or employee of a
government or governmental subdivision, agency, or
instrumentality, on behalf of the principal;
(I) Access communications intended for, and communicate on
behalf of the principal, whether by mail, electronic transmission,
telephone, or other means;
(J) Do any lawful act with respect to the subject and all
property related to the subject.
Sec. 1337.45. Unless the power of attorney otherwise
provides, language in a power of attorney granting general
authority with respect to real property authorizes the agent to do
all of the following:
(A) Demand, buy, lease, receive, accept as a gift or as
security for an extension of credit, or otherwise acquire or
reject an interest in real property or a right incident to real
property;
(B) Sell; exchange; convey with or without covenants,
representations, or warranties; quitclaim; release; surrender;
retain title for security; encumber; partition; consent to
partitioning; subject to an easement or covenant; subdivide; apply
for zoning or other governmental permits; plat or consent to
platting; develop; grant an option concerning; lease; sublease;
contribute to an entity in exchange for an interest in that
entity; or otherwise grant or dispose of an interest in real
property or a right incident to real property;
(C) Pledge or mortgage an interest in real property or right
incident to real property as security to borrow money or pay,
renew, or extend the time of payment of a debt of the principal or
a debt guaranteed by the principal;
(D) Release, assign, satisfy, or enforce by litigation or
otherwise a mortgage, deed of trust, conditional sale contract,
encumbrance, lien, or other claim to real property that exists or
is asserted;
(E) Manage or conserve an interest in real property or a
right incident to real property owned or claimed to be owned by
the principal, including all of the following:
(1) Insure against liability or casualty or other loss;
(2) Obtain or regain possession of or protect the interest or
right by litigation or otherwise;
(3) Pay, assess, compromise, or contest taxes or assessments
or apply for and receive refunds in connection with taxes;
(4) Purchase supplies, hire assistance or labor, and make
repairs or alterations to the real property.
(F) Use, develop, alter, replace, remove, erect, or install
structures or other improvements upon real property in or incident
to which the principal has, or claims to have, an interest or
right;
(G) Participate in a reorganization with respect to real
property or an entity that owns an interest in or right incident
to real property and receive, and hold, and act with respect to
stocks and bonds or other property received in a plan of
reorganization, including all of the following:
(1) Sell or otherwise dispose of them;
(2) Exercise or sell an option, right of conversion, or
similar right with respect to them;
(3) Exercise any voting rights in person or by proxy.
(H) Change the form of title of an interest in or right
incident to real property;
(I) Dedicate to public use, with or without consideration,
easements or other real property in which the principal has, or
claims to have, an interest.
Sec. 1337.46. Unless the power of attorney otherwise
provides, language in a power of attorney granting general
authority with respect to tangible personal property authorizes
the agent to do all of the following:
(A) Demand, buy, receive, accept as a gift or as security for
an extension of credit, or otherwise acquire or reject ownership
or possession of tangible personal property or an interest in
tangible personal property;
(B) Sell; exchange; convey with or without covenants,
representations, or warranties; quitclaim; release; surrender;
create a security interest in; grant options concerning; lease;
sublease; or otherwise dispose of tangible personal property or an
interest in tangible personal property;
(C) Grant a security interest in tangible personal property
or an interest in tangible personal property as security to borrow
money or pay, renew, or extend the time of payment of a debt of
the principal or a debt guaranteed by the principal;
(D) Release, assign, satisfy, or enforce by litigation or
otherwise a security interest, lien, or other claim on behalf of
the principal with respect to tangible personal property or an
interest in tangible personal property;
(E) Manage or conserve tangible personal property or an
interest in tangible personal property on behalf of the principal,
including all of the following:
(1) Insure against liability or casualty or other loss;
(2) Obtain or regain possession of or protect the property or
interest by litigation or otherwise;
(3) Pay, assess, compromise, or contest taxes or assessments
or apply for and receive refunds in connection with taxes or
assessments;
(4) Move the property from place to place;
(5) Store the property for hire or on a gratuitous bailment;
(6) Use and make repairs, alterations, or improvements to the
property.
(F) Change the form of title of an interest in tangible
personal property.
Sec. 1337.47. Unless the power of attorney otherwise
provides, language in a power of attorney granting general
authority with respect to stocks and bonds authorizes the agent to
do all of the following:
(A) Buy, sell, and exchange stocks and bonds;
(B) Establish, continue, modify, or terminate an account with
respect to stocks and bonds;
(C) Pledge stocks and bonds as security to borrow, pay,
renew, or extend the time of payment of a debt of the principal;
(D) Receive certificates and other evidences of ownership
with respect to stocks and bonds;
(E) Exercise voting rights with respect to stocks and bonds
in person or by proxy, enter into voting trusts, and consent to
limitations on the right to vote.
Sec. 1337.48. Unless the power of attorney otherwise
provides, language in a power of attorney granting general
authority with respect to commodities and options authorizes the
agent to do both of the following:
(A) Buy, sell, exchange, assign, settle, and exercise
commodity futures contracts and call or put options on stocks or
stock indexes traded on a regulated option exchange;
(B) Establish, continue, modify, and terminate option
accounts.
Sec. 1337.49. Unless the power of attorney otherwise
provides, language in a power of attorney granting general
authority with respect to banks and other financial institutions
authorizes the agent to do all of the following:
(A) Continue, modify, and terminate an account or other
banking arrangement made by or on behalf of the principal;
(B) Establish, modify, and terminate an account or other
banking arrangement with a bank, trust company, savings and loan
association, credit union, thrift company, brokerage firm, or
other financial institution selected by the agent;
(C) Contract for services available from a financial
institution, including renting a safe deposit box or space in a
vault;
(D) Withdraw, by check, order, electronic funds transfer, or
otherwise, money or property of the principal deposited with or
left in the custody of a financial institution;
(E) Receive statements of account, vouchers, notices, and
similar documents from a financial institution and act with
respect to them;
(F) Enter a safe deposit box or vault and withdraw or add to
the contents;
(G) Borrow money and pledge as security personal property of
the principal necessary to borrow money or pay, renew, or extend
the time of payment of a debt of the principal or a debt
guaranteed by the principal;
(H) Make, assign, draw, endorse, discount, guarantee, and
negotiate promissory notes, checks, drafts, and other negotiable
or nonnegotiable paper of the principal or payable to the
principal or the principal's order, transfer money, receive the
cash or other proceeds of those transactions, and accept a draft
drawn by a person upon the principal and pay it when due;
(I) Receive for the principal and act upon a sight draft,
warehouse receipt, or other document of title whether tangible or
electronic, or other negotiable or nonnegotiable instrument;
(J) Apply for, receive, and use letters of credit, credit and
debit cards, electronic transaction authorizations, and traveler's
checks from a financial institution and give an indemnity or other
agreement in connection with letters of credit;
(K) Consent to an extension of the time of payment with
respect to commercial paper or a financial transaction with a
financial institution.
Sec. 1337.50. Subject to the terms of a document or an
agreement governing an entity or an entity ownership interest, and
unless the power of attorney otherwise provides, language in a
power of attorney granting general authority with respect to the
operation of an entity or business authorizes the agent to do all
of the following:
(A) Operate, buy, sell, enlarge, reduce, or terminate an
ownership interest;
(B) Perform a duty or discharge a liability and exercise in
person or by proxy a right, power, privilege, or option that the
principal has, may have, or claims to have;
(C) Enforce the terms of an ownership agreement;
(D) Initiate, participate in, submit to alternative dispute
resolution, settle, oppose, or propose or accept a compromise with
respect to litigation to which the principal is a party because of
an ownership interest;
(E) Exercise in person or by proxy, or enforce by litigation
or otherwise, a right, power, privilege, or option the principal
has or claims to have as the holder of stocks and bonds;
(F) Initiate, participate in, submit to alternative dispute
resolution, settle, oppose, or propose or accept a compromise with
respect to litigation to which the principal is a party concerning
stocks and bonds;
(G) With respect to an entity or business owned solely by the
principal, do all of the following:
(1) Continue, modify, renegotiate, extend, and terminate a
contract made by or on behalf of the principal with respect to the
entity or business before execution of the power of attorney;
(2) Determine all of the following:
(a) The location of its operation;
(b) The nature and extent of its business;
(c) The methods of manufacturing, selling, merchandising,
financing, accounting, and advertising employed in its operation;
(d) The amount and types of insurance carried;
(e) The mode of engaging, compensating, and dealing with its
employees and accountants, attorneys, or other advisors.
(3) Change the name or form of organization under which the
entity or business is operated and enter into an ownership
agreement with other persons to take over all or part of the
operation of the entity or business;
(4) Demand and receive money due or claimed by the principal
or on the principal's behalf in the operation of the entity or
business and control and disburse the money in the operation of
the entity or business.
(H) Put additional capital into an entity or business in
which the principal has an interest;
(I) Join in a plan of reorganization, consolidation,
conversion, domestication, or merger of the entity or business;
(J) Sell or liquidate all or part of an entity or business;
(K) Establish the value of an entity or business under a
buy-out agreement to which the principal is a party;
(L) Prepare, sign, file, and deliver reports, compilations of
information, returns, or other papers with respect to an entity or
business and make related payments;
(M) Pay, compromise, or contest taxes, assessments, fines, or
penalties and perform any other act to protect the principal from
illegal or unnecessary taxation, assessments, fines, or penalties,
with respect to an entity or business, including attempts to
recover, in any manner permitted by law, money paid before or
after the execution of the power of attorney.
Sec. 1337.51. Unless the power of attorney otherwise
provides, language in a power of attorney granting general
authority with respect to insurance and annuities authorizes the
agent to do all of the following:
(A) Continue, pay the premium or make a contribution on,
modify, exchange, rescind, release, or terminate a contract
procured by or on behalf of the principal that insures or provides
an annuity to either the principal or another person, whether or
not the principal is a beneficiary under the contract;
(B) Procure new, different, and additional contracts of
insurance and annuities for the principal and the principal's
spouse, children, and other dependents and select the amount, type
of insurance or annuity, and mode of payment;
(C) Pay the premium or make a contribution on, modify,
exchange, rescind, release, or terminate a contract of insurance
or annuity procured by the agent;
(D) Apply for and receive a loan secured by a contract of
insurance or annuity;
(E) Surrender and receive the cash surrender value on a
contract of insurance or annuity;
(F) Exercise an election;
(G) Exercise investment powers available under a contract of
insurance or annuity;
(H) Change the manner of paying premiums on a contract of
insurance or annuity;
(I) Change or convert the type of insurance or annuity with
respect to which the principal has or claims to have authority
described in this section;
(J) Apply for and procure a benefit or assistance under a
statute or regulation to guarantee or pay premiums of a contract
of insurance on the life of the principal;
(K) Collect, sell, assign, hypothecate, borrow against, or
pledge the interest of the principal in a contract of insurance or
annuity;
(L) Select the form and timing of the payment of proceeds
from a contract of insurance or annuity;
(M) Pay from proceeds or otherwise, compromise or contest,
and apply for refunds in connection with a tax or assessment
levied by a taxing authority with respect to a contract of
insurance or annuity or its proceeds or liability accruing by
reason of the tax or assessment.
Sec. 1337.52. (A) As used in this section, "estate, trust,
or other beneficial interest" means a trust, probate estate,
guardianship, conservatorship, escrow, or custodianship or a fund
from which the principal is, may become, or claims to be entitled
to a share or payment.
(B) Unless the power of attorney otherwise provides, language
in a power of attorney granting general authority with respect to
estates, trusts, and other beneficial interests authorizes the
agent to do all of the following:
(1) Accept, receive, receipt for, sell, assign, pledge, or
exchange a share in or payment from an estate, trust, or other
beneficial interest;
(2) Demand or obtain money or another thing of value to which
the principal is, may become, or claims to be entitled by reason
of an estate, trust, or other beneficial interest, by litigation
or otherwise;
(3) Exercise for the benefit of the principal a presently
exercisable general power of appointment held by the principal;
(4) Initiate, participate in, submit to alternative dispute
resolution, settle, oppose, or propose or accept a compromise with
respect to litigation to ascertain the meaning, validity, or
effect of a deed, will, declaration of trust, or other instrument
or transaction affecting the interest of the principal;
(5) Initiate, participate in, submit to alternative dispute
resolution, settle, oppose, or propose or accept a compromise with
respect to litigation to remove, substitute, or surcharge a
fiduciary;
(6) Conserve, invest, disburse, or use anything received for
an authorized purpose;
(7) Transfer an interest of the principal in real property,
stocks and bonds, accounts with financial institutions or
securities intermediaries, insurance, annuities, and other
property to the trustee of a revocable trust created by the
principal as settlor;
(8) Reject, renounce, disclaim, release, or consent to a
reduction in or modification of a share in or payment from an
estate, trust, or other beneficial interest.
Sec. 1337.53. Unless the power of attorney otherwise
provides, language in a power of attorney granting general
authority with respect to claims and litigation authorizes the
agent to do all of the following:
(A) Assert and maintain before a court or administrative
agency a claim, claim for relief, cause of action, counterclaim,
offset, recoupment, or defense, including an action to recover
property or other thing of value, recover damages sustained by the
principal, eliminate or modify tax liability, or seek an
injunction, specific performance, or other relief;
(B) Bring an action to determine adverse claims or intervene
or otherwise participate in litigation;
(C) Seek an attachment, garnishment, order of arrest, or
other preliminary, provisional, or intermediate relief and use an
available procedure to effect or satisfy a judgment, order, or
decree;
(D) Make or accept a tender, offer of judgment, or admission
of facts, submit a controversy on an agreed statement of facts,
consent to examination, and bind the principal in litigation;
(E) Submit to alternative dispute resolution, settle, and
propose or accept a compromise;
(F) Waive the issuance and service of process upon the
principal, accept service of process, appear for the principal,
designate persons upon which process directed to the principal may
be served, execute and file or deliver stipulations on the
principal's behalf, verify pleadings, seek appellate review,
procure and give surety and indemnity bonds, contract and pay for
the preparation and printing of records and briefs, receive,
execute, and file or deliver a consent, waiver, release,
confession of judgment, satisfaction of judgment, notice,
agreement, or other instrument in connection with the prosecution,
settlement, or defense of a claim or litigation;
(G) Act for the principal with respect to bankruptcy or
insolvency, whether voluntary or involuntary, concerning the
principal or some other person, or with respect to a
reorganization, receivership, or application for the appointment
of a receiver or trustee that affects an interest of the principal
in property or other thing of value;
(H) Pay a judgment, award, or order against the principal or
a settlement made in connection with a claim or litigation;
(I) Receive money or other thing of value paid in settlement
of or as proceeds of a claim or litigation.
Sec. 1337.54. (A) Unless the power of attorney otherwise
provides, language in a power of attorney granting general
authority with respect to personal and family maintenance
authorizes the agent to do all of the following:
(1) Perform the acts necessary to maintain the customary
standard of living of the principal, the principal's spouse, and
the following individuals, whether living when the power of
attorney is executed or later born:
(a) Other individuals legally entitled to be supported by the
principal;
(b) The individuals whom the principal has customarily
supported or indicated the intent to support.
(2) Make periodic payments of child support and other family
maintenance required by a court or governmental agency or an
agreement to which the principal is a party;
(3) Provide living quarters for the individuals described in
division (A)(1) of this section by doing either of the following:
(a) Purchasing, leasing, or otherwise contracting;
(b) Paying the operating costs, including interest,
amortization payments, repairs, improvements, and taxes, for
premises owned by the principal or occupied by those individuals.
(4) Provide normal domestic help, usual vacations and travel
expenses, and funds for shelter, clothing, food, appropriate
education, including postsecondary and vocational education, and
other current living costs for the individuals described in
division (A)(1) of this section;
(5) Pay expenses for necessary health care and custodial care
on behalf of the individuals described in division (A)(1) of this
section;
(6) Act as the principal's personal representative pursuant
to 42 U.S.C. 1320d to 1320d-9 and applicable regulations in making
decisions related to the past, present, or future payment for the
provision of health care consented to by the principal or anyone
authorized under the law of this state to consent to health care
on behalf of the principal;
(7) Continue any provision made by the principal for
automobiles or other means of transportation, including
registering, licensing, insuring, and replacing them, for the
individuals described in division (A)(1) of this section;
(8) Maintain credit and debit accounts for the convenience of
the individuals described in division (A)(1) of this section and
open new accounts;
(9) Continue payments incidental to the membership or
affiliation of the principal in a religious institution, club,
society, order, or other organization or to continue contributions
to those organizations.
(B) Authority with respect to personal and family maintenance
is neither dependent upon, nor limited by, authority that an agent
may or may not have with respect to gifts under sections 1337.21
to 1337.64 of the Revised Code.
Sec. 1337.55. (A) As used in this section, "benefits from
governmental programs or civil or military service" means any
benefit, program, or assistance provided under a statute or
regulation, including social security, medicare, and medicaid.
(B) Unless the power of attorney otherwise provides, language
in a power of attorney granting general authority with respect to
benefits from governmental programs or civil or military service
authorizes the agent to do all of the following:
(1) Execute vouchers in the name of the principal for
allowances and reimbursements payable by the United States or a
foreign government or by a state or subdivision of a state to the
principal, including allowances and reimbursements for
transportation of the individuals described in division (A)(1) of
section 1337.54 of the Revised Code, and for shipment of their
household effects;
(2) Take possession and order the removal and shipment of
property of the principal from a post, warehouse, depot, dock, or
other place of storage or safekeeping, either governmental or
private, and execute and deliver a release, voucher, receipt, bill
of lading, shipping ticket, certificate, or other instrument for
that purpose;
(3) Enroll in, apply for, select, reject, change, amend, or
discontinue, on the principal's behalf, a benefit or program;
(4) Prepare, file, and maintain a claim of the principal for
a benefit or assistance, financial or otherwise, to which the
principal may be entitled under a statute or regulation;
(5) Initiate, participate in, submit to alternative dispute
resolution, settle, oppose, or propose or accept a compromise with
respect to litigation concerning any benefit or assistance the
principal may be entitled to receive under a statute or
regulation;
(6) Receive the financial proceeds of a claim described in
division (B)(4) of this section and conserve, invest, disburse, or
use for a lawful purpose anything so received.
Sec. 1337.56. (A) As used in this section, "retirement plan"
means a plan or account created by an employer, the principal, or
another individual to provide retirement benefits or deferred
compensation of which the principal is a participant, beneficiary,
or owner, including any of the following plans or accounts:
(1) An individual retirement account under section 408 of the
Internal Revenue Code of 1986, 26 U.S.C. 408;
(2) A Roth individual retirement account under section 408A
of the Internal Revenue Code of 1986, 26 U.S.C. 408A;
(3) A deemed individual retirement account under section
408(q) of the Internal Revenue Code of 1986, 26 U.S.C. 408(q);
(4) An annuity or mutual fund custodial account under section
403(b) of the Internal Revenue Code of 1986, 26 U.S.C. 403(b);
(5) A pension, profit-sharing, stock bonus, or other
retirement plan qualified under section 401(a) of the Internal
Revenue Code of 1986, 26 U.S.C. 401(a);
(6) A plan under section 457(b) of the Internal Revenue Code
of 1986, 26 U.S.C. 457(b);
(7) A nonqualified deferred compensation plan under section
409A of the Internal Revenue Code of 1986, 26 U.S.C. 409A.
(B) Unless the power of attorney otherwise provides, language
in a power of attorney granting general authority with respect to
retirement plans authorizes the agent to do all of the following:
(1) Select the form and timing of payments under a retirement
plan and withdraw benefits from a plan;
(2) Make a rollover, including a direct trustee-to-trustee
rollover, of benefits from one retirement plan to another;
(3) Establish a retirement plan in the principal's name;
(4) Make contributions to a retirement plan;
(5) Exercise investment powers available under a retirement
plan;
(6) Borrow from, sell assets to, or purchase assets from a
retirement plan.
Sec. 1337.57. Unless the power of attorney otherwise
provides, language in a power of attorney granting general
authority with respect to taxes authorizes the agent to do all of
the following:
(A) Prepare, sign, and file federal, state, local, and
foreign income, gift, payroll, property, Federal Insurance
Contributions Act, and other tax returns, claims for refunds,
requests for extension of time, petitions regarding tax matters,
and any other tax-related documents, including receipts, offers,
waivers, consents, including consents and agreements under section
2032A of the Internal Revenue Code of 1986, 26 U.S.C. 2032A,
closing agreements, and any power of attorney required by the
internal revenue service or other taxing authority with respect to
a tax year upon which the statute of limitations has not run and
the following twenty-five tax years;
(B) Pay taxes due, collect refunds, post bonds, receive
confidential information, and contest deficiencies determined by
the internal revenue service or other taxing authority;
(C) Exercise any election available to the principal under
federal, state, local, or foreign tax law;
(D) Act for the principal in all tax matters for all periods
before the internal revenue service, or other taxing authority.
Sec. 1337.58. (A) As used in this section, a gift "for the
benefit of" a person includes a gift to a trust, an account under
the Uniform Transfers to Minors Act, and a tuition savings account
or prepaid tuition plan as defined under section 529 of the
Internal Revenue Code of 1986, 26 U.S.C. 529.
(B) Unless the power of attorney otherwise provides, language
in a power of attorney granting general authority with respect to
gifts authorizes the agent to do only the following:
(1) Make outright to, or for the benefit of, a person, a gift
of any of the principal's property, including by the exercise of a
presently exercisable general power of appointment held by the
principal, in an amount per donee not to exceed the annual dollar
limits of the federal gift tax exclusion under section 2503(b) of
the Internal Revenue Code of 1986, 26 U.S.C. 2503(b), without
regard to whether the federal gift tax exclusion applies to the
gift, or if the principal's spouse agrees to consent to a split
gift pursuant to section 2513 of the Internal Revenue Code of
1986, 26 U.S.C. 2513, in an amount per donee not to exceed twice
the annual federal gift tax exclusion limit;
(2) Consent, pursuant to section 2513 of the Internal Revenue
Code of 1986, 26 U.S.C. 2513, to the splitting of a gift made by
the principal's spouse in an amount per donee not to exceed the
aggregate annual gift tax exclusions for both spouses.
(C) An agent may make a gift of the principal's property,
outright or by amending, creating, or funding a trust, only as the
agent determines is consistent with the principal's objectives if
actually known by the agent and, if unknown, as the agent
determines is consistent with the principal's best interest based
on all relevant factors, including all of the following:
(1) The value and nature of the principal's property;
(2) The principal's foreseeable obligations and need for
maintenance;
(3) Minimization of taxes, including income, estate,
inheritance, generation-skipping transfer, and gift taxes;
(4) Eligibility for a benefit, a program, or assistance under
a statute or regulation;
(5) The principal's personal history of making or joining in
making gifts.
Sec. 1337.59. In a power of attorney executed on or after
March 29, 2006, and before the effective date of this section that
either uses the statutory power of attorney form contained in
former section 1337.18 of the Revised Code or that incorporates by
reference any one or more of the powers contained in former
section 1337.20 of the Revised Code, the powers granted shall be
construed in accordance with former section 1337.20 of the Revised
Code.
Sec. 1337.60. A document substantially in the following form
may be used to create a statutory form power of attorney that has
the meaning and effect prescribed by sections 1337.21 to 1337.64
of the Revised Code.
[INSERT NAME OF JURISDICTION]
STATUTORY FORM POWER OF ATTORNEY
This power of attorney authorizes another person (your agent)
to make decisions concerning your property for you (the
principal). Your agent will be able to make decisions and act with
respect to your property (including your money) whether or not you
are able to act for yourself. The meaning of authority over
subjects listed on this form is explained in the Uniform Power of
Attorney Act (sections 1337.21 to 1337.64 of the Revised Code).
This power of attorney does not authorize the agent to make
health-care decisions for you.
You should select someone you trust to serve as your agent.
Unless you specify otherwise, generally the agent's authority will
continue until you die or revoke the power of attorney or the
agent resigns or is unable to act for you.
Your agent is entitled to reasonable compensation unless you
state otherwise in the Special Instructions.
This form provides for designation of one agent. If you wish
to name more than one agent you may name a coagent in the Special
Instructions. Coagents are not required to act together unless you
include that requirement in the Special Instructions.
If your agent is unable or unwilling to act for you, your
power of attorney will end unless you have named a successor
agent. You may also name a second successor agent.
This power of attorney becomes effective immediately unless
you state otherwise in the Special Instructions.
ACTIONS REQUIRING EXPRESS AUTHORITY
Unless expressly authorized and initialed by me in the
Special Instructions, this power of attorney does not grant
authority to my agent to do any of the following:
(2) Amend, revoke, or terminate an inter vivos trust, even if
specific authority to do so is granted to the agent in the trust
agreement;
(4) Create or change rights of survivorship;
(5) Create or change a beneficiary designation;
(6) Delegate authority granted under the power of attorney;
(7) Waive the principal's right to be a beneficiary of a
joint and survivor annuity, including a survivor benefit under a
retirement plan;
(8) Exercise fiduciary powers that the principal has
authority to delegate.
CAUTION: Granting any of the above eight powers will give
your agent the authority to take actions that could significantly
reduce your property or change how your property is distributed at
your death.
If you have questions about the power of attorney or the
authority you are granting to your agent, you should seek legal
advice before signing this form.
I, ..................................... (Name of Principal)
name the following person as my agent:
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DESIGNATION OF SUCCESSOR AGENT(S) (OPTIONAL)
If my agent is unable or unwilling to act for me, I name as
my successor agent:
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Successor Agent's Address: |
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Successor Agent's Telephone Number:
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If my successor agent is unable or unwilling to act for me, I
name as my second successor agent:
Name of Second Successor Agent: |
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Second Successor Agent's Address: |
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Second Successor Agent's Telephone Number:
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GRANT OF GENERAL AUTHORITY
I grant my agent and any successor agent general authority to
act for me with respect to the following subjects as defined in
the Uniform Power of Attorney Act (sections 1337.21 to 1337.64 of
the Revised Code):
(INITIAL each subject you want to include in the agent's
general authority. If you wish to grant general authority over all
of the subjects you may initial "All Preceding Subjects" instead
of initialing each subject.)
(...) Tangible Personal Property
(...) Commodities and Options
(...) Banks and Other Financial Institutions
(...) Operation of Entity or Business
(...) Insurance and Annuities
(...) Estates, Trusts, and Other Beneficial Interests
(...) Claims and Litigation
(...) Personal and Family Maintenance
(...) Benefits from Governmental Programs or Civil or
Military Service
(...) All Preceding Subjects
LIMITATION ON AGENT'S AUTHORITY
An agent that is not my ancestor, spouse, or descendant MAY
NOT use my property to benefit the agent or a person to whom the
agent owes an obligation of support unless I have included that
authority in the Special Instructions.
SPECIAL INSTRUCTIONS (OPTIONAL)
You may give special instructions on the following lines:
This power of attorney is effective immediately unless I have
stated otherwise in the Special Instructions.
NOMINATION OF GUARDIAN (OPTIONAL)
If it becomes necessary for a court to appoint a guardian of
my estate or my person, I nominate the following person(s) for
appointment:
Name of Nominee for guardian of my estate:
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Nominee's Address: |
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Nominee's Telephone Number: |
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Name of Nominee for guardian of my person:
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Nominee's Address: |
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RELIANCE ON THIS POWER OF ATTORNEY
Any person, including my agent, may rely upon the validity of
this power of attorney or a copy of it unless that person knows it
has terminated or is invalid.
SIGNATURE AND ACKNOWLEDGMENT
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Your Address |
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Your Telephone Number |
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County of ..........................
This document was acknowledged before me on
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of Principal).
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Signature of Notary |
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My commission expires: |
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This document prepared by: |
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IMPORTANT INFORMATION FOR AGENT
When you accept the authority granted under this power of
attorney, a special legal relationship is created between you and
the principal. This relationship imposes upon you legal duties
that continue until you resign or the power of attorney is
terminated or revoked. You must:
(1) Do what you know the principal reasonably expects you to
do with the principal's property or, if you do not know the
principal's expectations, act in the principal's best interest;
(3) Do nothing beyond the authority granted in this power of
attorney;
(4) Attempt to preserve the principal's estate plan if you
know the plan and preserving the plan is consistent with the
principal's best interest;
(5) Disclose your identity as an agent whenever you act for
the principal by writing or printing the name of the principal and
signing your own name as "agent" in the following manner:
(Principal's Name) by (Your Signature) as Agent
Unless the Special Instructions in this power of attorney
state otherwise, you must also:
(1) Act loyally for the principal's benefit;
(2) Avoid conflicts that would impair your ability to act in
the principal's best interest;
(3) Act with care, competence, and diligence;
(4) Keep a record of all receipts, disbursements, and
transactions made on behalf of the principal;
(5) Cooperate with any person that has authority to make
health-care decisions for the principal to do what you know the
principal reasonably expects or, if you do not know the
principal's expectations, to act in the principal's best interest.
Termination of Agent's Authority
You must stop acting on behalf of the principal if you learn
of any event that terminates this power of attorney or your
authority under this power of attorney. Events that terminate a
power of attorney or your authority to act under a power of
attorney include:
(1) The death of the principal;
(2) The principal's revocation of the power of attorney or
your authority;
(3) The occurrence of a termination event stated in the power
of attorney;
(4) The purpose of the power of attorney is fully
accomplished;
(5) If you are married to the principal, a legal action is
filed with a court to end your marriage, or for your legal
separation, unless the Special Instructions in this power of
attorney state that such an action will not terminate your
authority.
The meaning of the authority granted to you is defined in the
Uniform Power of Attorney Act (sections 1337.21 to 1337.64 of the
Revised Code). If you violate the Uniform Power of Attorney Act or
act outside the authority granted, you may be liable for any
damages caused by your violation.
If there is anything about this document or your duties that
you do not understand, you should seek legal advice.
Sec. 1337.61. The following optional form may be used by an
agent to certify facts concerning a power of attorney.
AGENT'S CERTIFICATION AS TO THE VALIDITY OF POWER OF ATTORNEY
AND AGENT'S AUTHORITY
County of .....................
I, ......................................... (Name of Agent),
certify under penalty of perjury that
............................. (Name of Principal) granted me
authority as an agent or successor agent in a power of attorney
dated ................................
I further certify that to my knowledge:
(1) The Principal is alive and has not revoked the Power of
Attorney or my authority to act under the Power of Attorney and
the Power of Attorney and my authority to act under the Power of
Attorney have not terminated;
(2) If the Power of Attorney was drafted to become effective
upon the happening of an event or contingency, the event or
contingency has occurred;
(3) If I was named as a successor agent, the prior agent is
no longer able or willing to serve;
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(Insert other relevant statements).
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SIGNATURE AND ACKNOWLEDGMENT
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Agent's Name Printed |
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Agent's Address |
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Agent's Telephone Number |
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County of ..........................
This document was acknowledged before me on
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(Name of Agent).
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Signature of Notary |
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My commission expires: |
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Sec. 1337.62. In applying and construing sections 1337.21 to
1337.64 of the Revised Code, consideration shall be given to the
need to promote uniformity of the law with respect to its subject
matter among the states that enact it.
Sec. 1337.63. Sections 1337.21 to 1337.64 of the Revised
Code modify, limit, and supersede the "Electronic Signatures in
Global and National Commerce Act," 15 U.S.C. 7001 et seq., with
the exception of section 101(c) of that act, 15 U.S.C. 7001(c).
Sections 1337.21 to 1337.64 of the Revised Code do not authorize
electronic delivery of any of the notices described in section
103(b) of that act, 15 U.S.C. 7003(b).
Sec. 1337.64. (A) Except as otherwise provided in sections
1337.21 to 1337.64 of the Revised Code, on the effective date of
this section, those sections apply to all of the following:
(1) A power of attorney created before, on, or after the
effective date of this section;
(2) A judicial proceeding concerning a power of attorney
commenced on or after the effective date of this section;
(3) A judicial proceeding concerning a power of attorney
commenced before the effective date of this section, unless the
court finds that application of a provision of sections 1337.21 to
1337.64 of the Revised Code would substantially interfere with the
effective conduct of the judicial proceeding or prejudice the
rights of a party, in which case that provision does not apply and
the superseded law applies.
(B) Sections 1337.21 to 1337.64 of the Revised Code do not
affect an act done before the effective date of this section.
Sec. 2101.24. (A)(1) Except as otherwise provided by law,
the probate court has exclusive jurisdiction:
(a) To take the proof of wills and to admit to record
authenticated copies of wills executed, proved, and allowed in the
courts of any other state, territory, or country. If the probate
judge is unavoidably absent, any judge of the court of common
pleas may take proof of wills and approve bonds to be given, but
the record of these acts shall be preserved in the usual records
of the probate court.
(b) To grant and revoke letters testamentary and of
administration;
(c) To direct and control the conduct and settle the accounts
of executors and administrators and order the distribution of
estates;
(d) To appoint the attorney general to serve as the
administrator of an estate pursuant to section 2113.06 of the
Revised Code;
(e) To appoint and remove guardians, conservators, and
testamentary trustees, direct and control their conduct, and
settle their accounts;
(f) To grant marriage licenses;
(g) To make inquests respecting persons who are so mentally
impaired as a result of a mental or physical illness or
disability, or mental retardation, or as a result of chronic
substance abuse, that they are unable to manage their property and
affairs effectively, subject to guardianship;
(h) To qualify assignees, appoint and qualify trustees and
commissioners of insolvents, control their conduct, and settle
their accounts;
(i) To authorize the sale of lands, equitable estates, or
interests in lands or equitable estates, and the assignments of
inchoate dower in such cases of sale, on petition by executors,
administrators, and guardians;
(j) To authorize the completion of real estate contracts on
petition of executors and administrators;
(l) To render declaratory judgments, including, but not
limited to, those rendered pursuant to section 2107.084 of the
Revised Code;
(m) To direct and control the conduct of fiduciaries and
settle their accounts;
(n) To authorize the sale or lease of any estate created by
will if the estate is held in trust, on petition by the trustee;
(o) To terminate a testamentary trust in any case in which a
court of equity may do so;
(p) To hear and determine actions to contest the validity of
wills;
(q) To make a determination of the presumption of death of
missing persons and to adjudicate the property rights and
obligations of all parties affected by the presumption;
(r) To hear and determine an action commenced pursuant to
section 3107.41 of the Revised Code to obtain the release of
information pertaining to the birth name of the adopted person and
the identity of the adopted person's biological parents and
biological siblings;
(s) To act for and issue orders regarding wards pursuant to
section 2111.50 of the Revised Code;
(t) To hear and determine actions against sureties on the
bonds of fiduciaries appointed by the probate court;
(u) To hear and determine actions involving informed consent
for medication of persons hospitalized pursuant to section
5122.141 or 5122.15 of the Revised Code;
(v) To hear and determine actions relating to durable powers
of attorney for health care as described in division (D) of
section 1337.16 of the Revised Code;
(w) To hear and determine actions commenced by objecting
individuals, in accordance with section 2133.05 of the Revised
Code;
(x) To hear and determine complaints that pertain to the use
or continuation, or the withholding or withdrawal, of
life-sustaining treatment in connection with certain patients
allegedly in a terminal condition or in a permanently unconscious
state pursuant to division (E) of section 2133.08 of the Revised
Code, in accordance with that division;
(y) To hear and determine applications that pertain to the
withholding or withdrawal of nutrition and hydration from certain
patients allegedly in a permanently unconscious state pursuant to
section 2133.09 of the Revised Code, in accordance with that
section;
(z) To hear and determine applications of attending
physicians in accordance with division (B) of section 2133.15 of
the Revised Code;
(aa) To hear and determine actions relative to the use or
continuation of comfort care in connection with certain principals
under durable powers of attorney for health care, declarants under
declarations, or patients in accordance with division (E) of
either section 1337.16 or 2133.12 of the Revised Code;
(bb) To hear and determine applications for an order
relieving an estate from administration under section 2113.03 of
the Revised Code;
(cc) To hear and determine applications for an order granting
a summary release from administration under section 2113.031 of
the Revised Code;
(dd) To hear and determine actions relating to the exercise
of the right of disposition, in accordance with section 2108.90 of
the Revised Code;
(ee) To hear and determine actions relating to the
disinterment and reinterment of human remains under section 517.23
of the Revised Code;
(ff) To hear and determine petitions for an order for
treatment of a person suffering from alcohol and other drug abuse
filed under section 3793.34 of the Revised Code and to order
treatment of that nature in accordance with, and take other
actions afforded to the court under, sections 3793.31 to 3793.39
of the Revised Code.
(2) In addition to the exclusive jurisdiction conferred upon
the probate court by division (A)(1) of this section, the probate
court shall have exclusive jurisdiction over a particular subject
matter if both of the following apply:
(a) Another section of the Revised Code expressly confers
jurisdiction over that subject matter upon the probate court.
(b) No section of the Revised Code expressly confers
jurisdiction over that subject matter upon any other court or
agency.
(B)(1) The probate court has concurrent jurisdiction with,
and the same powers at law and in equity as, the general division
of the court of common pleas to issue writs and orders, and to
hear and determine actions as follows:
(a) If jurisdiction relative to a particular subject matter
is stated to be concurrent in a section of the Revised Code or has
been construed by judicial decision to be concurrent, any action
that involves that subject matter;
(b) Any action that involves an inter vivos trust; a trust
created pursuant to section 5815.28 of the Revised Code; a
charitable trust or foundation; subject to divisions (A)(1)(u) and
(z) of this section, a power of attorney, including, but not
limited to, a durable power of attorney; the medical treatment of
a competent adult; or a writ of habeas corpus.
(2) Any action that involves a concurrent jurisdiction
subject matter and that is before the probate court may be
transferred by the probate court, on its order, to the general
division of the court of common pleas.
(C) The probate court has plenary power at law and in equity
to dispose fully of any matter that is properly before the court,
unless the power is expressly otherwise limited or denied by a
section of the Revised Code.
(D) The jurisdiction acquired by a probate court over a
matter or proceeding is exclusive of that of any other probate
court, except when otherwise provided by law.
Sec. 2107.52. (A) As used in this section:
(1) "Class member" means an individual who fails to survive
the testator but who would have taken under a devise in the form
of a class gift had the individual survived the testator.
(2) "Descendant of a grandparent" means an individual who
qualifies as a descendant of a grandparent of the testator or of
the donor of a power of appointment under either of the following:
(a) The rules of construction applicable to a class gift
created in the testator's will if the devise or the exercise of
the power of appointment is in the form of a class gift;
(b) The rules for intestate succession if the devise or the
exercise of the power of appointment is not in the form of a class
gift.
(3) "Devise" means an alternative devise, a devise in the
form of a class gift, or an exercise of a power of appointment.
(4) "Devisee" means any of the following:
(a) A class member if the devise is in the form of a class
gift;
(b) An individual or class member who was deceased at the
time the testator executed the testator's will or an individual or
class member who was then living but who failed to survive the
testator;
(c) An appointee under a power of appointment exercised by
the testator's will.
(5) "Per stirpes" means that the shares of the descendants of
a devisee who does not survive the testator are determined in the
same way they would have been determined under division (A) of
section 2105.06 of the Revised Code if the devisee had died
intestate and unmarried on the date of the testator's death.
(6) "Stepchild" means a child of the surviving, deceased, or
former spouse of the testator or of the donor of a power of
appointment and not of the testator or donor.
(7) "Surviving devisee" or "surviving descendant" means a
devisee or descendant, whichever is applicable, who survives the
testator by at least one hundred twenty hours.
(8) "Testator" includes the donee of a power of appointment
if the power is exercised in the testator's will.
(B)(1) As used in "surviving descendants" in divisions
(B)(2)(a) and (b) of this section, "descendants" means the
descendants of a deceased devisee or class member under the
applicable division who would take under a class gift created in
the testator's will.
(2) Unless a contrary intent appears in the will, if a
devisee fails to survive the testator and is a grandparent, a
descendant of a grandparent, or a stepchild of either the testator
or the donor of a power of appointment exercised by the testator's
will, either of the following applies:
(a) If the devise is not in the form of a class gift and the
deceased devisee leaves surviving descendants, a substitute gift
is created in the devisee's surviving descendants. The surviving
descendants take, per stirpes, the property to which the devisee
would have been entitled had the devisee survived the testator.
(b) If the devise is in the form of a class gift, other than
a devise to "issue," "descendants," "heirs of the body," "heirs,"
"next of kin," "relatives," or "family," or a class described by
language of similar import, a substitute gift is created in the
surviving descendants of any deceased devisee. The property to
which the devisees would have been entitled had all of them
survived the testator passes to the surviving devisees and the
surviving descendants of the deceased devisees. Each surviving
devisee takes the share to which the surviving devisee would have
been entitled had the deceased devisees survived the testator.
Each deceased devisee's surviving descendants who are substituted
for the deceased devisee take, per stirpes, the share to which the
deceased devisee would have been entitled had the deceased devisee
survived the testator. For purposes of division (B)(2)(b) of this
section, "deceased devisee" means a class member who failed to
survive the testator by at least one hundred twenty hours and left
one or more surviving descendants.
(C) For purposes of this section, each of the following
applies:
(1) Attaching the word "surviving" or "living" to a devise,
such as a gift "to my surviving (or living) children," is not, in
the absence of other language in the will or other evidence to the
contrary, a sufficient indication of an intent to negate the
application of division (B) of this section.
(2) Attaching other words of survivorship to a devise, such
as "to my child, if my child survives me," is, in the absence of
other language in the will or other evidence to the contrary, a
sufficient indication of an intent to negate the application of
division (B) of this section.
(3) A residuary clause is not a sufficient indication of an
intent to negate the application of division (B) of this section
unless the will specifically provides that upon lapse or failure
the nonresiduary devise, or nonresiduary devises in general, pass
under the residuary clause.
(4) Unless the language creating a power of appointment
expressly excludes the substitution of the descendants of an
appointee for the appointee, a surviving descendant of a deceased
appointee of a power of appointment may be substituted for the
appointee under this section, whether or not the descendant is an
object of the power of appointment.
(D) Except as provided in division (A), (B), or (C) of this
section, each of the following applies:
(1) A devise, other than a residuary devise, that fails for
any reason becomes a part of the residue.
(2) If the residue is devised to two or more persons, the
share of a residuary devisee that fails for any reason passes to
the other residuary devisee, or to other residuary devisees in
proportion to the interest of each in the remaining part of the
residue.
(3) If a residuary devise fails for any reason in its
entirety, the residue passes by intestate succession.
(E) This section applies only to outright devises and
appointments. Devises and appointments in trust, including to a
testamentary trust, are subject to section 5808.19 of the Revised
Code.
(F) This section applies to wills of decedents who die on or
after the effective date of this section.
Sec. 2109.21. (A) An administrator, special administrator,
administrator de bonis non, or administrator with the will annexed
shall be a resident of this state and shall be removed on proof
that the administrator is no longer a resident of this state.
(B)(1) To qualify for appointment as executor or trustee, an
executor or a trustee named in a will or nominated in accordance
with any power of nomination conferred in a will, may be a
resident of this state or, as provided in this division, a
nonresident of this state. To qualify for appointment, a
nonresident executor or trustee named in, or nominated pursuant
to, a will shall be an individual who is related to the maker of
the will by consanguinity or affinity, or a person who resides in
a state that has statutes or rules that authorize the appointment
of a nonresident person who is not related to the maker of a will
by consanguinity or affinity, as an executor or trustee when named
in, or nominated pursuant to, a will. No such executor or trustee
shall be refused appointment or removed solely because the
executor or trustee is not a resident of this state.
The court may require that a nonresident executor or trustee
named in, or nominated pursuant to, a will assure that all of the
assets of the decedent that are in the county at the time of the
death of the decedent will remain in the county until distribution
or until the court determines that the assets may be removed from
the county.
(2) In accordance with this division and section 2129.08 of
the Revised Code, the court shall appoint as an ancillary
administrator a person who is named in the will of a nonresident
decedent, or who is nominated in accordance with any power of
nomination conferred in the will of a nonresident decedent, as a
general executor of the decedent's estate or as executor of the
portion of the decedent's estate located in this state, whether or
not the person so named or nominated is a resident of this state.
To qualify for appointment as an ancillary administrator, a
person who is not a resident of this state and who is named or
nominated as described in this division, shall be an individual
who is related to the maker of the will by consanguinity or
affinity, or a person who resides in a state that has statutes or
rules that authorize the appointment of a nonresident of that
state who is not related to the maker of a will by consanguinity
or affinity, as an ancillary administrator when the nonresident is
named in a will or nominated in accordance with any power of
nomination conferred in a will. If a person who is not a resident
of this state and who is named or nominated as described in this
division so qualifies for appointment as an ancillary
administrator and if the provisions of section 2129.08 of the
Revised Code are satisfied, the court shall not refuse to appoint
the person, and shall not remove the person, as ancillary
administrator solely because the person is not a resident of this
state.
The court may require that an ancillary administrator who is
not a resident of this state and who is named or nominated as
described in this division, assure that all of the assets of the
decedent that are in the county at the time of the death of the
decedent will remain in the county until distribution or until the
court determines that the assets may be removed from the county.
(C)(1) A guardian shall be a resident of this state, except
that the court may appoint a nonresident of this state as a
guardian if any of the following applies:
(a) The nonresident is named in a will by a parent of a
minor.
(b) The nonresident is selected by a minor over the age of
fourteen years as provided by section 2111.12 of the Revised Code.
(c) The nonresident is nominated in or pursuant to a durable
power of attorney as described in division (D) of under section
1337.09 1337.24 of the Revised Code or a writing as described in
division (A) of section 2111.121 of the Revised Code.
(2) A guardian, other than a guardian named in a will by a
parent of a minor, selected by a minor over the age of fourteen
years, or nominated in or pursuant to a durable power of attorney
or writing described in division (C)(1)(c) of this section, may be
removed on proof that the guardian is no longer a resident of this
state.
(D) Any fiduciary, whose residence qualifications are not
defined in this section, shall be a resident of this state, and
shall be removed on proof that the fiduciary is no longer a
resident of this state.
(E) Any fiduciary, in order to assist in the carrying out of
the fiduciary's fiduciary duties, may employ agents who are not
residents of the county or of this state.
Sec. 2111.02. (A) When found necessary, the probate court on
its own motion or on application by any interested party shall
appoint, subject to divisions (C) and (D) of this section and to
section 2109.21 and division (B) of section 2111.121 of the
Revised Code, a guardian of the person, the estate, or both, of a
minor or incompetent, provided the person for whom the guardian is
to be appointed is a resident of the county or has a legal
settlement in the county and, except in the case of a minor, has
had the opportunity to have the assistance of counsel in the
proceeding for the appointment of such guardian. An interested
party includes, but is not limited to, a person nominated in a
durable power of attorney as described in division (D) of under
section
1337.09 1337.24 of the Revised Code or in a writing as
described in division (A) of section 2111.121 of the Revised Code.
Except when the guardian of an incompetent is an agency under
contract with the department of developmental disabilities for the
provision of protective services under sections 5123.55 to 5123.59
of the Revised Code, the guardian of an incompetent, by virtue of
such appointment, shall be the guardian of the minor children of
the guardian's ward, unless the court appoints some other person
as their guardian.
When the primary purpose of the appointment of a guardian is,
or was, the collection, disbursement, or administration of moneys
awarded by the veterans administration to the ward, or assets
derived from such moneys, no court costs shall be charged in the
proceeding for the appointment or in any subsequent proceedings
made in pursuance of the appointment, unless the value of the
estate, including the moneys then due under the veterans
administration award, exceeds one thousand five hundred dollars.
(B)(1) If the probate court finds it to be in the best
interest of an incompetent or minor, it may appoint pursuant to
divisions (A) and (C) of this section, on its own motion or on
application by an interested party, a limited guardian with
specific limited powers. The sections of the Revised Code, rules,
and procedures governing guardianships apply to a limited
guardian, except that the order of appointment and letters of
authority of a limited guardian shall state the reasons for, and
specify the limited powers of, the guardian. The court may appoint
a limited guardian for a definite or indefinite period. An
incompetent or minor for whom a limited guardian has been
appointed retains all of the incompetent's or minor's rights in
all areas not affected by the court order appointing the limited
guardian.
(2) If a guardian appointed pursuant to division (A) of this
section is temporarily or permanently removed or resigns, and if
the welfare of the ward requires immediate action, at any time
after the removal or resignation, the probate court may appoint,
ex parte and with or without notice to the ward or interested
parties, an interim guardian for a maximum period of fifteen days.
If the court appoints the interim guardian ex parte or without
notice to the ward, the court, at its first opportunity, shall
enter upon its journal with specificity the reason for acting ex
parte or without notice, and, as soon as possible, shall serve
upon the ward a copy of the order appointing the interim guardian.
For good cause shown, after notice to the ward and interested
parties and after hearing, the court may extend an interim
guardianship for a specified period, but not to exceed an
additional thirty days.
(3) If a minor or incompetent has not been placed under a
guardianship pursuant to division (A) of this section and if an
emergency exists, and if it is reasonably certain that immediate
action is required to prevent significant injury to the person or
estate of the minor or incompetent, at any time after it receives
notice of the emergency, the court, ex parte, may issue any order
that it considers necessary to prevent injury to the person or
estate of the minor or incompetent, or may appoint an emergency
guardian for a maximum period of seventy-two hours. A written copy
of any order issued by a court under this division shall be served
upon the incompetent or minor as soon as possible after its
issuance. Failure to serve such an order after its issuance or
prior to the taking of any action under its authority does not
invalidate the order or the actions taken. The powers of an
emergency guardian shall be specified in the letters of
appointment, and shall be limited to those powers that are
necessary to prevent injury to the person or estate of the minor
or incompetent. If the court acts ex parte or without notice to
the minor or incompetent, the court, at its first opportunity,
shall enter upon its journal a record of the case and, with
specificity, the reason for acting ex parte or without notice. For
good cause shown, after notice to the minor or incompetent and
interested parties, and after hearing, the court may extend an
emergency guardianship for a specified period, but not to exceed
an additional thirty days.
(C) Prior to the appointment of a guardian or limited
guardian under division (A) or (B)(1) of this section, the court
shall conduct a hearing on the matter of the appointment. The
hearing shall be conducted in accordance with all of the
following:
(1) The proposed guardian or limited guardian shall appear at
the hearing and, if appointed, shall swear under oath that the
proposed guardian or limited guardian has made and will continue
to make diligent efforts to file a true inventory in accordance
with section 2111.14 of the Revised Code and find and report all
assets belonging to the estate of the ward and that the proposed
guardian or limited guardian faithfully and completely will
fulfill the other duties of guardian, including the filing of
timely and accurate reports and accountings;
(2) If the hearing is conducted by a referee, the procedures
set forth in Civil Rule 53 shall be followed;
(3) If the hearing concerns the appointment of a guardian or
limited guardian for an alleged incompetent, the burden of proving
incompetency shall be by clear and convincing evidence;
(4) Upon request of the applicant, the alleged incompetent
for whom the appointment is sought or the alleged incompetent's
counsel, or any interested party, a recording or record of the
hearing shall be made;
(5) Evidence of a less restrictive alternative to
guardianship may be introduced, and when introduced, shall be
considered by the court;
(6) The court may deny a guardianship based upon a finding
that a less restrictive alternative to guardianship exists;
(7) If the hearing concerns the appointment of a guardian or
limited guardian for an alleged incompetent, the alleged
incompetent has all of the following rights:
(a) The right to be represented by independent counsel of the
alleged incompetent's choice;
(b) The right to have a friend or family member of the
alleged incompetent's choice present;
(c) The right to have evidence of an independent expert
evaluation introduced;
(d) If the alleged incompetent is indigent, upon the alleged
incompetent's request:
(i) The right to have counsel and an independent expert
evaluator appointed at court expense;
(ii) If the guardianship, limited guardianship, or standby
guardianship decision is appealed, the right to have counsel
appointed and necessary transcripts for appeal prepared at court
expense.
(D)(1) When a person has been nominated to be a guardian of
the estate of a minor in or pursuant to a durable power of
attorney as described in division (D) of under section
1337.09
1337.24 of the Revised Code or a writing as described in division
(A) of section 2111.121 of the Revised Code, the person nominated
has preference in appointment over a person selected by the minor.
A person who has been nominated to be a guardian of the person of
a minor in or pursuant to a durable power of attorney or writing
of that nature does not have preference in appointment over a
person selected by the minor, but the probate court may appoint
the person named in the durable power of attorney or the writing,
the person selected by the minor, or another person as guardian of
the person of the minor.
(2) A person nominated as a guardian of an incompetent adult
child pursuant to a durable power of attorney under section
1337.09 1337.24 or pursuant to section 2111.121 of the Revised
Code shall have preference in appointment over a person applying
to be guardian if the person nominated is competent, suitable, and
willing to accept the appointment, and if the incompetent adult
child does not have a spouse or an adult child and has not
designated a guardian prior to the court finding the adult child
incompetent.
Sec. 2111.12. (A) A minor over the age of fourteen years may
select a guardian who shall be appointed if a suitable person. If
such a minor over the age of fourteen years fails to select a
suitable person, an appointment may be made without reference to
the minor's wishes. The minor shall not select one person to be
the guardian of the minor's estate only and another to be the
guardian of the person only, unless the court which that appoints
is of the opinion that the interests of such that minor will
thereby be promoted.
(B) A surviving parent by last will in writing may appoint a
guardian for any of the surviving parent's children, whether born
at the time of making the will or afterward, to continue during
the minority of the child or for a less time.
When the father or mother of a minor names a person as
guardian of the estate of such that minor in a will, the person
named shall have preference in appointment over the person
selected by
such the minor. A person named in such a will as
guardian of the person of such that minor shall have no preference
in appointment over the person selected by such the minor, but in
such that event the probate court may appoint the person named in
the will, the person selected by the minor, or some other person.
Whenever a testamentary guardian is appointed, the
testamentary guardian's duties, powers, and liabilities in all
other respects shall be governed by the law regulating guardians
not appointed by will.
(C) A parent pursuant to a durable power of attorney as
described in division (D) of under section 1337.09 1337.24 or a
writing as described in division (A) of section 2111.121 of the
Revised Code may nominate a person to be a guardian for one or
more of the parent's minor children, whether born at the time of
the making of the petition or afterward.
Sec. 2111.121. (A) A person may nominate in a writing, as
described in this division, another person to be the guardian of
the nominator's person, estate, or both or the guardian of the
person, the estate, or both, of one or more of the nominator's
minor or incompetent adult children, whether born at the time of
the execution of the writing or afterward, subject to notice and a
hearing pursuant to section 2111.02 of the Revised Code. The
nomination is for consideration by a court if proceedings for the
appointment of a guardian of the person, the estate, or both, for
the person making the nomination or if proceedings for the
appointment of a guardian as the guardian of the person, the
estate, or both of one or more of the nominator's minor or
incompetent adult children are commenced at a later time. The
person may authorize, in a writing of that nature, the person
nominated as guardian to nominate a successor guardian for
consideration by a court. The person also may direct, in a writing
of that nature, that bond be waived for a person nominated as
guardian in it or nominated as a successor guardian in accordance
with an authorization in it.
To be effective as a nomination, the writing shall be signed
by the person making the nomination in the presence of two
witnesses; signed by the witnesses; contain, immediately prior to
their signatures, an attestation of the witnesses that the person
making the nomination signed the writing in their presence; and be
acknowledged by the person making the nomination before a notary
public.
(B) If a person has nominated, in a writing as described in
division (A) of this section or in a durable power of attorney
as
described in division (D) of under section 1337.09 1337.24 of the
Revised Code, another person to be the guardian of the nominator's
person, estate, or both, and proceedings for the appointment of a
guardian for the person are commenced at a later time, the court
involved shall appoint the person nominated as guardian in the
writing or durable power of attorney most recently executed if the
person nominated is competent, suitable, and willing to accept the
appointment. If the writing or durable power of attorney contains
a waiver of bond, the court shall waive bond of the person
nominated as guardian unless it is of the opinion that the
interest of the trust demands it.
(C) Nomination of a person as a guardian or successor
guardian of the person, the estate, or both of one or more of the
nominator's minor or incompetent adult children under division (A)
of this section, and any subsequent appointment of the guardian or
successor guardian as guardian under section 2111.02 of the
Revised Code, does not vacate the jurisdiction of any other court
that previously may have exercised jurisdiction over the person of
the minor or incompetent adult child.
(D) The writing containing the nomination of a person to be
the guardian of the person, the estate, or both of one or more of
the nominator's minor or incompetent adult children under division
(A) of this section may be filed with the probate court for
safekeeping, and the probate court shall designate the nomination
as the nomination of a standby guardian.
Sec. 3793.31. As used in sections 3793.31 to 3793.39 of the
Revised Code:
(A) "Alcohol and other drug abuse" means alcoholism or drug
addiction.
(B) "Another drug" means a controlled substance as defined in
section 3719.01 of the Revised Code or a harmful intoxicant as
defined in section 2925.01 of the Revised Code.
(C) "Board of alcohol, drug addiction, and mental health
services" means a board of alcohol, drug addiction, and mental
health services established under section 340.02 or 340.021 of the
Revised Code.
(D) "Danger" or "threat of danger to self, family, or others"
means substantial physical harm or threat of substantial physical
harm upon self, family, or others.
(E) "Hospital" has the same meaning as in section 3701.01 or
3727.01 of the Revised Code but does not include either a hospital
operated by the department of mental health or an inpatient unit
licensed by the department.
(F) "Intoxicated" means being under the influence of alcohol,
another drug, or both alcohol and another drug and, as a result,
having a significantly impaired ability to function.
(G) "Petitioner" means a person who institutes a proceeding
under sections 3793.32 to 3793.39 of the Revised Code.
(H) "Probate court" means the probate division of the court
of common pleas.
(I) "Qualified health professional" means a person that is
properly credentialed or licensed to conduct a drug and alcohol
assessment and diagnosis under Ohio law.
(J) "Residence" means the legal residence of a person as
determined by applicable principles governing conflicts of law.
(K) "Respondent" means a person alleged in a petition filed
or hearing under sections 3793.32 to 3793.39 of the Revised Code
to be a person who is suffering from alcohol and other drug abuse
and who should be ordered under those sections to undergo
treatment.
(L) "Treatment" means services and programs for the care and
rehabilitation of intoxicated persons and persons suffering from
alcohol and other drug abuse. "Treatment" includes residential
treatment, a halfway house setting, and an intensive outpatient or
outpatient level of care.
Sec. 3793.32. A probate court may order involuntary treatment
for a person suffering from alcohol and other drug abuse pursuant
to the procedures set forth in sections 3793.31 to 3793.39 of the
Revised Code.
Sec. 3793.33. No person shall be ordered to undergo treatment
under sections 3793.31 to 3793.39 of the Revised Code unless all
of the following apply to that person:
(A) The person suffers from alcohol and other drug abuse.
(B) The person presents an imminent danger or imminent threat
of danger to self, family, or others as a result of alcohol and
other drug abuse, or there exists a substantial likelihood of such
a threat in the near future.
(C) The person can reasonably benefit from treatment.
Sec. 3793.34. (A) A person may initiate proceedings for
treatment for an individual suffering from alcohol and other drug
abuse by filing a verified petition in the probate court and
paying a filing fee in the same amount, if any, that is charged
for the filing under section 5122.11 of the Revised Code of an
affidavit seeking the hospitalization of a person. The petition
and all subsequent court documents shall be entitled: "In the
interest of (name of respondent)." A spouse, relative, or guardian
of the individual concerning whom the petition is filed shall file
the petition.
(B) A petition filed under division (A) of this section shall
set forth all of the following:
(1) The petitioner's relationship to the respondent;
(2) The respondent's name, residence address, and current
location, if known;
(3) The name and residence of the respondent's parents, if
living and if known, or of the respondent's legal guardian, if any
and if known;
(4) The name and residence of the respondent's spouse, if any
and if known;
(5) The name and residence of the person having custody of
the respondent, if any, or if no such person is known, the name
and residence of a near relative or a statement that the person is
unknown;
(6) The petitioner's belief, including the factual basis for
the belief, that the respondent is suffering from alcohol and
other drug abuse and presents an imminent danger or imminent
threat of danger to self, family, or others if not treated for
alcohol or other drug abuse.
(C)(1) Any petition filed pursuant to divisions (A) and (B)
of this section shall be accompanied by a certificate of a
physician who has examined the respondent within two days prior to
the day that the petition is filed in the probate court. The
physician shall be authorized to practice medicine and surgery or
osteopathic medicine and surgery under Chapter 4731. of the
Revised Code. The physician's certificate shall set forth the
physician's findings in support of the need to treat the
respondent for alcohol or other drug abuse. The certificate shall
indicate if the respondent presents an imminent danger or imminent
threat of danger to self, family, or others if not treated.
Further, the certificate shall indicate the type and length of
treatment required and if the respondent can reasonably benefit
from treatment. If the physician's certificate indicates that
inpatient treatment is required, the certificate shall identify
any inpatient facilities known to the physician that are able and
willing to provide the recommended inpatient treatment.
If the respondent refuses to undergo an examination with a
physician concerning the respondent's possible need for treatment
for alcohol or other drug abuse, the petition shall state that the
respondent has refused all requests made by the petitioner to
undergo a physician's examination. In that case, the petitioner
shall not be required to provide a physician's certificate with
the petition.
(2) Any petition filed pursuant to divisions (A) and (B) of
this section shall contain a statement that the petitioner has
arranged for treatment of the respondent. Further, the petition
shall be accompanied by a statement from the person or facility
who has agreed to provide the treatment that verifies that the
person or facility has agreed to provide the treatment and the
estimated cost of the treatment.
(D) Any petition filed pursuant to divisions (A) and (B) of
this section shall be accompanied by both of the following:
(1) A security deposit to be deposited with the clerk of the
probate court that will cover half of the estimated cost of
treatment of the respondent;
(2) A guarantee, signed by the petitioner or another person
authorized to file the petition obligating the guarantor to pay
the costs of the examinations of the respondent conducted by the
physician and qualified health professional under division (B)(5)
of section 3793.35 of the Revised Code, the costs of the
respondent that are associated with a hearing conducted in
accordance with section 3793.35 of the Revised Code and that the
court determines to be appropriate, and the costs of any treatment
ordered by the court.
Sec. 3793.35. (A) Upon receipt of a petition filed under
section 3793.34 of the Revised Code and the payment of the
appropriate filing fee, if any, the probate court shall examine
the petitioner under oath as to the contents of the petition.
(B) If, after reviewing the allegations contained in the
petition and examining the petitioner under oath, it appears to
the probate court that there is probable cause to believe the
respondent should be ordered to undergo treatment, the court shall
do all of the following:
(1) Schedule a hearing to be held within seven days to
determine if there is probable cause to believe that the
respondent should be ordered to undergo treatment for alcohol and
other drug abuse;
(2) Notify the respondent, the legal guardian, if any and if
known, and the spouse, parents, or nearest relative or friend of
the respondent concerning the allegations and contents of the
petition and of the date and purpose of the hearing;
(3) Notify the respondent that the respondent may retain
counsel and, if the person is unable to obtain an attorney, that
the respondent may be represented by court-appointed counsel at
public expense if the person is indigent. Upon the appointment of
an attorney to represent an indigent respondent, the court shall
notify the respondent of the name, address, and telephone number
of the attorney appointed to represent the respondent.
(4) Notify the respondent that the court shall cause the
respondent to be examined not later than twenty-four hours before
the hearing date by a physician for the purpose of a physical
examination and by a qualified health professional for the purpose
of a drug and alcohol addiction assessment and diagnosis. In
addition, the court shall notify the respondent that the
respondent may have an independent expert evaluation of the
person's physical and mental condition conducted at the
respondent's own expense.
(5) Cause the respondent to be examined not later than
twenty-four hours before the hearing date by a physician for the
purpose of a physical examination and by a qualified health
professional for the purpose of a drug and alcohol addiction
assessment and diagnosis;
(C) The physician and qualified health professional who
examine the respondent pursuant to division (B)(5) of this section
or who are obtained by the respondent at the respondent's own
expense shall certify their findings to the court within
twenty-four hours of the examinations. The findings of each
qualified health professional shall include a recommendation for
treatment if the qualified health professional determines that
treatment is necessary.
(D)(1) If the probate court finds upon completion of the
hearing held under this section that the respondent should be
ordered to undergo treatment, the court shall order the treatment
after considering the qualified health professionals'
recommendations for treatment that have been submitted to the
court under division (C) of this section. The court shall order
the treatment to be provided through an alcohol and drug addiction
program certified under section 3793.06 of the Revised Code or by
an individual licensed or certified by the state medical board
under Chapter 4731. of the Revised Code, the chemical dependency
professionals board under Chapter 4758. of the Revised Code, the
counselor, social worker, and marriage and family therapist board
under Chapter 4757. of the Revised Code, or a similar board of
another state authorized to provide substance abuse treatment.
(2) Failure of a respondent to undergo and complete any
treatment ordered pursuant to this division is contempt of court.
Any alcohol and drug addiction program or person providing
treatment under this division shall notify the probate court of a
respondent's failure to undergo or complete the ordered treatment.
(E) If, at any time after a petition is filed under section
3793.34 of the Revised Code, the probate court finds that there is
not probable cause to continue treatment or if the petitioner
withdraws the petition, then the court shall dismiss the
proceedings against the respondent.
Sec. 3793.36. (A) Following an examination by a qualified
health professional and a certification by that professional that
the person meets the criteria specified in section 3793.33 of the
Revised Code, a probate court may order the person hospitalized
for a period not to exceed seventy-two hours if the court finds by
clear and convincing evidence that the person presents an imminent
threat of danger to self, family, or others as a result of alcohol
and other drug abuse. However, if the hearing to be held under
section 3793.35 of the Revised Code will not be held within
seventy-two hours, the court may order the person hospitalized
until the hearing. In making its order, the court shall inform the
person that the person may immediately make a reasonable number of
telephone calls or use other reasonable means to contact an
attorney, a licensed physician, or a qualified health
professional, to contact any other person or persons to secure
representation by counsel, or to obtain medical or psychological
assistance and that the person will be provided assistance in
making calls if the assistance is needed and requested.
(B) Any person who has been admitted to a hospital under
division (A) of this section shall be released from the hospital
immediately upon the expiration of the time period established by
the court for the hospitalization.
(C) No person ordered hospitalized under this section shall
be held in jail pending transportation to the hospital or
evaluation unless the probate court previously has found the
person to be in contempt of court for either failure to undergo
treatment or failure to appear at the evaluation ordered pursuant
to section 3793.35 of the Revised Code.
Sec. 3793.37. When a probate court is authorized to issue an
order that the respondent be transported to a hospital, the court
may issue a summons. If the respondent fails to attend an
examination scheduled before the hearing under section 3793.35 of
the Revised Code, the court shall issue a summons. A summons so
issued shall be directed to the respondent and shall command the
respondent to appear at a time and place specified in the summons.
If a respondent who has been summoned fails to appear at the
hospital or the examination, the probate court may order the
sheriff or any other peace officer to transport the respondent to
a hospital on the list provided under section 3793.38 of the
Revised Code for treatment. The sheriff or any other peace
officer, upon agreement of a person authorized by the peace
officer, may authorize a board of alcohol, drug addiction, and
mental health services, a private agency under contract with a
board of alcohol, drug addiction, and mental health services, or
an ambulance service designated by a board of alcohol, drug
addiction, and mental health services to transport the respondent
to the hospital. The transportation costs of the sheriff, other
peace officer, ambulance service, or other private agency under
contract with the board of alcohol, drug addiction, and mental
health services shall be included in the costs of treatment for
alcohol and other drug abuse to be paid by the petitioner.
Sec. 3793.38. Each board of alcohol, drug addiction, and
mental health services on at least an annual basis shall submit
each of the following lists to the clerk of the probate court in
each county served by the board:
(A) A list of all hospitals in the counties served by the
board that are able and willing to take respondents ordered to
undergo seventy-two hours of treatment and observation pursuant to
section 3793.36 of the Revised Code;
(B) A list of hospitals and treatment providers in the
counties served by the board that are able and willing to provide
treatment for alcohol and other drug abuse ordered pursuant to
section 3793.35 of the Revised Code.
Sec. 3793.39. Sections 3793.12, 3793.13, and 3793.14 of the
Revised Code apply to a person who is ordered to undergo treatment
under sections 3793.31 to 3793.39 of the Revised Code.
Sec. 5301.071. No instrument conveying real estate property,
or any interest therein in real property, and of record in the
office of the county recorder of the county within this state in
which such that real
estate property is situated shall be deemed
considered defective nor shall the validity of such that
conveyance be affected because of any of the following:
(A) The dower interest of the spouse of any grantor was not
specifically released, but such that spouse executed said the
instrument in the manner provided in section 5301.01 of the
Revised Code.
(B) The officer taking the acknowledgment of such the
instrument having an official seal did not affix such that seal to
the certificate of acknowledgment.
(C) The certificate of acknowledgment is not on the same
sheet of paper as the instrument.
(D) The executor, administrator, guardian, assignee, or
trustee making such the instrument signed or acknowledged the same
individually instead of in his a representative or official
capacity.
(E)(1) The grantor or grantee of the instrument is a trust
rather than the trustee or trustees of the trust if the trust
named as grantor or grantee has been duly created under the laws
of the state of its existence at the time of the conveyance and a
memorandum of trust that complies with section 5301.255 of the
Revised Code and contains a description of the real property
conveyed by that instrument is recorded in the office of the
county recorder in which the instrument of conveyance is recorded.
Upon compliance with division (E)(1) of this section, a conveyance
to a trust shall be considered to be a conveyance to the trustee
or trustees of the trust in furtherance of the manifest intention
of the parties.
(2) Except as otherwise provided in division (E)(2) of this
section, division (E)(1) of this section shall be given
retroactive effect to the fullest extent permitted under section
28 of Article II, Ohio Constitution. Division (E) of this section
shall not be given retroactive or curative effect if to do so
would invalidate or supersede any instrument that conveys real
property, or any interest in the real property, recorded in the
office of the county recorder in which that real property is
situated prior to the date of recording of a curative memorandum
of trust or the effective date of this section, whichever event
occurs later.
Sec. 5747.02. (A) For the purpose of providing revenue for
the support of schools and local government functions, to provide
relief to property taxpayers, to provide revenue for the general
revenue fund, and to meet the expenses of administering the tax
levied by this chapter, there is hereby levied on every
individual, trust, and estate residing in or earning or receiving
income in this state, on every individual, trust, and estate
earning or receiving lottery winnings, prizes, or awards pursuant
to Chapter 3770. of the Revised Code, on every individual, trust,
and estate earning or receiving winnings on casino gaming, and on
every individual, trust, and estate otherwise having nexus with or
in this state under the Constitution of the United States, an
annual tax measured in the case of individuals by Ohio adjusted
gross income less an exemption for the taxpayer, the taxpayer's
spouse, and each dependent as provided in section 5747.025 of the
Revised Code; measured in the case of trusts by modified Ohio
taxable income under division (D) of this section; and measured in
the case of estates by Ohio taxable income. The tax imposed by
this section on the balance thus obtained is hereby levied as
follows:
(1) For taxable years beginning in 2004:
OHIO ADJUSTED GROSS INCOME LESS EXEMPTIONS (INDIVIDUALS) |
|
|
|
OR |
|
|
|
MODIFIED OHIO |
|
|
|
TAXABLE INCOME (TRUSTS) |
|
|
|
OR |
|
|
|
OHIO TAXABLE INCOME (ESTATES) |
TAX |
|
|
$5,000 or less |
|
.743% |
|
|
More than $5,000 but not more than $10,000 |
|
$37.15 plus 1.486% of the amount in excess of $5,000 |
|
|
More than $10,000 but not more than $15,000 |
|
$111.45 plus 2.972% of the amount in excess of $10,000 |
|
|
More than $15,000 but not more than $20,000 |
|
$260.05 plus 3.715% of the amount in excess of $15,000 |
|
|
More than $20,000 but not more than $40,000 |
|
$445.80 plus 4.457% of the amount in excess of $20,000 |
|
|
More than $40,000 but not more than $80,000 |
|
$1,337.20 plus 5.201% of the amount in excess of $40,000 |
|
|
More than $80,000 but not more than $100,000 |
|
$3,417.60 plus 5.943% of the amount in excess of $80,000 |
|
|
More than $100,000 but not more than $200,000 |
|
$4,606.20 plus 6.9% of the amount in excess of $100,000 |
|
|
More than $200,000 |
|
$11,506.20 plus 7.5% of the amount in excess of $200,000 |
|
|
(2) For taxable years beginning in 2005:
OHIO ADJUSTED GROSS INCOME LESS EXEMPTIONS (INDIVIDUALS) |
|
|
|
OR |
|
|
|
MODIFIED OHIO |
|
|
|
TAXABLE INCOME (TRUSTS) |
|
|
|
OR |
|
|
|
OHIO TAXABLE INCOME (ESTATES) |
TAX |
|
|
$5,000 or less |
|
.712% |
|
|
More than $5,000 but not more than $10,000 |
|
$35.60 plus 1.424% of the amount in excess of $5,000 |
|
|
More than $10,000 but not more than $15,000 |
|
$106.80 plus 2.847% of the amount in excess of $10,000 |
|
|
More than $15,000 but not more than $20,000 |
|
$249.15 plus 3.559% of the amount in excess of $15,000 |
|
|
More than $20,000 but not more than $40,000 |
|
$427.10 plus 4.27% of the amount in excess of $20,000 |
|
|
More than $40,000 but not more than $80,000 |
|
$1,281.10 plus 4.983% of the amount in excess of $40,000 |
|
|
More than $80,000 but not more than $100,000 |
|
$3,274.30 plus 5.693% of the amount in excess of $80,000 |
|
|
More than $100,000 but not more than $200,000 |
|
$4,412.90 plus 6.61% of the amount in excess of $100,000 |
|
|
More than $200,000 |
|
$11,022.90 plus 7.185% of the amount in excess of $200,000 |
|
|
(3) For taxable years beginning in 2006:
OHIO ADJUSTED GROSS INCOME LESS EXEMPTIONS (INDIVIDUALS) |
|
|
|
OR |
|
|
|
MODIFIED OHIO |
|
|
|
TAXABLE INCOME (TRUSTS) |
|
|
|
OR |
|
|
|
OHIO TAXABLE INCOME (ESTATES) |
TAX |
|
|
$5,000 or less |
|
.681% |
|
|
More than $5,000 but not more than $10,000 |
|
$34.05 plus 1.361% of the amount in excess of $5,000 |
|
|
More than $10,000 but not more than $15,000 |
|
$102.10 plus 2.722% of the amount in excess of $10,000 |
|
|
More than $15,000 but not more than $20,000 |
|
$238.20 plus 3.403% of the amount in excess of $15,000 |
|
|
More than $20,000 but not more than $40,000 |
|
$408.35 plus 4.083% of the amount in excess of $20,000 |
|
|
More than $40,000 but not more than $80,000 |
|
$1,224.95 plus 4.764% of the amount in excess of $40,000 |
|
|
More than $80,000 but not more than $100,000 |
|
$3,130.55 plus 5.444% of the amount in excess of $80,000 |
|
|
More than $100,000 but not more than $200,000 |
|
$4,219.35 plus 6.32% of the amount in excess of $100,000 |
|
|
More than $200,000 |
|
$10,539.35 plus 6.87% of the amount in excess of $200,000 |
|
|
(4) For taxable years beginning in 2007:
OHIO ADJUSTED GROSS INCOME LESS EXEMPTIONS (INDIVIDUALS) |
|
|
|
OR |
|
|
|
MODIFIED OHIO |
|
|
|
TAXABLE INCOME (TRUSTS) |
|
|
|
OR |
|
|
|
OHIO TAXABLE INCOME (ESTATES) |
TAX |
|
|
$5,000 or less |
|
.649% |
|
|
More than $5,000 but not more than $10,000 |
|
$32.45 plus 1.299% of the amount in excess of $5,000 |
|
|
More than $10,000 but not more than $15,000 |
|
$97.40 plus 2.598% of the amount in excess of $10,000 |
|
|
More than $15,000 but not more than $20,000 |
|
$227.30 plus 3.247% of the amount in excess of $15,000 |
|
|
More than $20,000 but not more than $40,000 |
|
$389.65 plus 3.895% of the amount in excess of $20,000 |
|
|
More than $40,000 but not more than $80,000 |
|
$1,168.65 plus 4.546% of the amount in excess of $40,000 |
|
|
More than $80,000 but not more than $100,000 |
|
$2,987.05 plus 5.194% of the amount in excess of $80,000 |
|
|
More than $100,000 but not more than $200,000 |
|
$4,025.85 plus 6.031% of the amount in excess of $100,000 |
|
|
More than $200,000 |
|
$10,056.85 plus 6.555% of the amount in excess of $200,000 |
|
|
(5) For taxable years beginning in 2008, 2009, or 2010:
OHIO ADJUSTED GROSS INCOME LESS EXEMPTIONS (INDIVIDUALS) |
|
|
|
OR |
|
|
|
MODIFIED OHIO |
|
|
|
TAXABLE INCOME (TRUSTS) |
|
|
|
OR |
|
|
|
OHIO TAXABLE INCOME (ESTATES) |
TAX |
|
|
$5,000 or less |
|
.618% |
|
|
More than $5,000 but not more than $10,000 |
|
$30.90 plus 1.236% of the amount in excess of $5,000 |
|
|
More than $10,000 but not more than $15,000 |
|
$92.70 plus 2.473% of the amount in excess of $10,000 |
|
|
More than $15,000 but not more than $20,000 |
|
$216.35 plus 3.091% of the amount in excess of $15,000 |
|
|
More than $20,000 but not more than $40,000 |
|
$370.90 plus 3.708% of the amount in excess of $20,000 |
|
|
More than $40,000 but not more than $80,000 |
|
$1,112.50 plus 4.327% of the amount in excess of $40,000 |
|
|
More than $80,000 but not more than $100,000 |
|
$2,843.30 plus 4.945% of the amount in excess of $80,000 |
|
|
More than $100,000 but not more than $200,000 |
|
$3,832.30 plus 5.741% of the amount in excess of $100,000 |
|
|
More than $200,000 |
|
$9,573.30 plus 6.24% of the amount in excess of $200,000 |
|
|
(6) For taxable years beginning in 2011 or thereafter:
OHIO ADJUSTED GROSS INCOME LESS EXEMPTIONS (INDIVIDUALS) |
|
|
|
OR |
|
|
|
MODIFIED OHIO |
|
|
|
TAXABLE INCOME (TRUSTS) |
|
|
|
OR |
|
|
|
OHIO TAXABLE INCOME (ESTATES) |
TAX |
|
|
$5,000 or less |
|
.587% |
|
|
More than $5,000 but not more than $10,000 |
|
$29.35 plus 1.174% of the amount in excess of $5,000 |
|
|
More than $10,000 but not more than $15,000 |
|
$88.05 plus 2.348% of the amount in excess of $10,000 |
|
|
More than $15,000 but not more than $20,000 |
|
$205.45 plus 2.935% of the amount in excess of $15,000 |
|
|
More than $20,000 but not more than $40,000 |
|
$352.20 plus 3.521% of the amount in excess of $20,000 |
|
|
More than $40,000 but not more than $80,000 |
|
$1,056.40 plus 4.109% of the amount in excess of $40,000 |
|
|
More than $80,000 but not more than $100,000 |
|
$2,700.00 plus 4.695% of the amount in excess of $80,000 |
|
|
More than $100,000 but not more than $200,000 |
|
$3,639.00 plus 5.451% of the amount in excess of $100,000 |
|
|
More than $200,000 |
|
$9,090.00 plus 5.925% of the amount in excess of $200,000 |
|
|
In July of each year, beginning in 2010, the tax commissioner
shall adjust the income amounts prescribed in this division by
multiplying the percentage increase in the gross domestic product
deflator computed that year under section 5747.025 of the Revised
Code by each of the income amounts resulting from the adjustment
under this division in the preceding year, adding the resulting
product to the corresponding income amount resulting from the
adjustment in the preceding year, and rounding the resulting sum
to the nearest multiple of fifty dollars. The tax commissioner
also shall recompute each of the tax dollar amounts to the extent
necessary to reflect the adjustment of the income amounts. The
rates of taxation shall not be adjusted.
The adjusted amounts apply to taxable years beginning in the
calendar year in which the adjustments are made. The tax
commissioner shall not make such adjustments in any year in which
the amount resulting from the adjustment would be less than the
amount resulting from the adjustment in the preceding year.
(B) If the director of budget and management makes a
certification to the tax commissioner under division (B) of
section 131.44 of the Revised Code, the amount of tax as
determined under division (A) of this section shall be reduced by
the percentage prescribed in that certification for taxable years
beginning in the calendar year in which that certification is
made.
(C) The levy of this tax on income does not prevent a
municipal corporation, a joint economic development zone created
under section 715.691, or a joint economic development district
created under section 715.70 or 715.71 or sections 715.72 to
715.81 of the Revised Code from levying a tax on income.
(D) This division applies only to taxable years of a trust
beginning in 2002 or thereafter.
(1) The tax imposed by this section on a trust shall be
computed by multiplying the Ohio modified taxable income of the
trust by the rates prescribed by division (A) of this section.
(2) A nonresident resident trust may claim a credit against
the tax computed under division (D) of this section equal to the
lesser of (1) the tax paid to another state or the District of
Columbia on the nonresident resident trust's modified nonbusiness
income, other than the portion of the nonresident resident trust's
nonbusiness income that is qualifying investment income as defined
in section 5747.012 of the Revised Code, or (2) the effective tax
rate, based on modified Ohio taxable income, multiplied by the
nonresident resident trust's modified nonbusiness income other
than the portion of the
nonresident resident trust's nonbusiness
income that is qualifying investment income. The credit applies
before any other applicable credits.
(3) The credits enumerated in divisions (A)(1) to (13) of
section 5747.98 of the Revised Code do not apply to a trust
subject to division (D) of this section. Any credits enumerated in
other divisions of section 5747.98 of the Revised Code apply to a
trust subject to division (D) of this section. To the extent that
the trust distributes income for the taxable year for which a
credit is available to the trust, the credit shall be shared by
the trust and its beneficiaries. The tax commissioner and the
trust shall be guided by applicable regulations of the United
States treasury regarding the sharing of credits.
(E) For the purposes of this section, "trust" means any trust
described in Subchapter J of Chapter 1 of the Internal Revenue
Code, excluding trusts that are not irrevocable as defined in
division (I)(3)(b) of section 5747.01 of the Revised Code and that
have no modified Ohio taxable income for the taxable year,
charitable remainder trusts, qualified funeral trusts and preneed
funeral contract trusts established pursuant to sections 4717.31
to 4717.38 of the Revised Code that are not qualified funeral
trusts, endowment and perpetual care trusts, qualified settlement
trusts and funds, designated settlement trusts and funds, and
trusts exempted from taxation under section 501(a) of the Internal
Revenue Code.
Sec. 5801.10. (A) As used in this section, "creditor" means
any of the following:
(1) A person holding a debt or security for a debt entered
into by a trustee on behalf of the trust;
(2) A person holding a debt secured by one or more assets of
the trust;
(3) A person having a claim against the trustee or the assets
of the trust under section 5805.06 of the Revised Code;
(4) A person who has attached through legal process a
beneficiary's interest in the trust.
(B) The parties to an agreement under this section shall be
all of the following, or their representatives under the
representation provisions of Chapter 5803. of the Revised Code,
except that only the settlor and any trustee are required to be
parties to an amendment of any revocable trust:
(1) The settlor if living and if no adverse income or
transfer tax results would arise from the settlor's participation;
(3) All currently serving trustees;
(4) Creditors, if their interest is to be affected by the
agreement;
(5) The attorney general if an agreement described in
division (C)(7) of this section is being made and either of the
following applies:
(a) An organization with one or more purposes that are
described in division (A) of section 5804.05 of the Revised Code
is a beneficiary.
(b) The trust is a charitable trust.
(C) The persons specified in division (B) of this section may
by written instrument enter into an agreement with respect to any
matter concerning the construction of, administration of, or
distributions under the terms of the trust, the investment of
income or principal held by the trustee, or other matters. The
agreement may not effect a termination of the trust before the
date specified for the trust's termination in the terms of the
trust, change the interests of the beneficiaries in the trust
except as necessary to effect a modification described in division
(C)(5) or, (6), or (7) of this section, or include terms and
conditions that could not be properly approved by the court under
Chapters 5801. to 5811. of the Revised Code or other applicable
law. The invalidity of any provision of the agreement does not
affect the validity of other provisions of the agreement. Matters
that may be resolved by a private settlement agreement include,
but are not limited to, all of the following:
(1) Determining classes of creditors, beneficiaries, heirs,
next of kin, or other persons;
(2) Resolving disputes arising out of the administration or
distribution under the terms of the trust, including disputes over
the construction of the language of the trust instrument or
construction of the language of other writings that affect the
terms of the trust;
(3) Granting to the trustee necessary or desirable powers not
granted in the terms of the trust or otherwise provided by law, to
the extent that those powers either are not inconsistent with the
express provisions or purposes of the terms of the trust or, if
inconsistent with the express provisions or purposes of the terms
of the trust, are necessary for the due administration of the
terms of the trust;
(4) Modifying the terms of the trust, if the modification is
not inconsistent with any dominant purpose or objective of the
trust;
(5) Modifying the terms of the trust in the manner required
to qualify the gift under the terms of the trust for the
charitable estate or gift tax deduction permitted by federal law,
including the addition of mandatory governing instrument
requirements for a charitable remainder trust as required by the
Internal Revenue Code and regulations promulgated under it in any
case in which all parties interested in the trust have submitted
written agreements to the proposed changes or written disclaimer
of interest;
(6) Modifying the terms of the trust in the manner required
to qualify any gift under the terms of the trust for the estate
tax marital deduction available to noncitizen spouses, including
the addition of mandatory governing instrument requirements for a
qualified domestic trust under section 2056A of the Internal
Revenue Code and regulations promulgated under it in any case in
which all parties interested in the trust have submitted written
agreements to the proposed changes or written disclaimer of
interest;
(7) Construing or modifying the terms of a trust that refer
to the federal estate tax, federal generation-skipping transfer
tax, or Ohio estate tax, or that contain a division of property
based on the imposition or amount of one or more of those taxes,
to give effect to the intent of the settlor.
(8) Resolving any other matter that arises under Chapters
5801. to 5811. of the Revised Code.
(D) No agreement shall be entered into under this section
affecting the rights of a creditor without the creditor's consent
or affecting the collection rights of federal, state, or local
taxing authorities.
(E) Any agreement entered into under this section that
complies with the requirements of division (C) of this section
shall be final and binding on the trustee, the settlor if living,
all beneficiaries, creditors who are parties to the agreement, and
their heirs, successors, and assigns.
(F) Notwithstanding anything in this section, in division (D)
of section 5803.03 of the Revised Code, or in any other rule of
law to the contrary, a trustee serving under the terms of the
trust shall only represent its own individual or corporate
interests in negotiating or entering into an agreement subject to
this section. No trustee serving under the terms of the trust
shall be considered to represent any settlor, beneficiary, or the
interests of any settlor or beneficiary in negotiating or entering
into an agreement subject to this section.
(G) Any party to a private settlement agreement entered into
under this section may request the court to approve the agreement,
to determine whether the representation as provided in Chapter
5803. of the Revised Code was adequate, and to determine whether
the agreement contains terms and conditions the court could have
properly approved.
(H) If an agreement entered into under this section contains
a provision requiring binding arbitration of any disputes arising
under the agreement, the provision is enforceable.
(I) Nothing in this section affects any of the following:
(1) The right of a beneficiary to disclaim under section
5815.36 of the Revised Code;
(2) The termination or modification of a trust under section
5804.10, 5804.11, 5804.12, 5804.13, 5804.14, 5804.15, or 5804.16
of the Revised Code;
(3) The ability of a trustee to divide or consolidate a trust
under section 5804.17 of the Revised Code;
(4) The power of the trustee to make distributions pursuant
to section 5808.18 of the Revised Code.
(J) Nothing in this section restricts or limits the
jurisdiction of any court to dispose of matters not covered by
agreements under this section or to supervise the acts of trustees
appointed by that court.
(K) This section shall be liberally construed to favor the
validity and enforceability of agreements entered into under it.
(L) A trustee serving under the trust instrument is not
liable to any third person arising from any loss due to that
trustee's actions or inactions taken or omitted in good faith
reliance on the terms of an agreement entered into under this
section.
(M) This Subject to divisions (B)(5) and (C)(7) of this
section, this section does not apply to any of the following:
(1) A charitable trust that has one or more charitable
organizations as qualified beneficiaries;
(2) A charitable trust the terms of which authorize or direct
the trustee to distribute trust income or principal to one or more
charitable organizations to be selected by the trustee, or for one
or more charitable purposes described in division (A) of section
5804.05 of the Revised Code, if any of the following apply:
(a) The distributions may be made on the date that an
agreement under this section would be entered into.
(b) The distributions could be made on the date that an
agreement under this section would be entered into if the
interests of the current beneficiaries of the trust terminated on
that date, but the termination of those interests would not cause
the trust to terminate.
(c) The distributions could be made on the date that an
agreement under this section would be entered into if the trust
terminated on that date.
Sec. 5804.12. (A) The court may modify the administrative or
dispositive terms of a trust or terminate the trust if because of
circumstances not anticipated by the settlor modification or
termination will further the purposes of the trust. To the extent
practicable, the court shall make the modification in accordance
with the settlor's probable intention.
(B) The court may modify the administrative terms of a trust
if continuation of the trust on its existing terms would be
impracticable or impair the trust's administration.
(C) Upon termination of a trust under this section, the
trustee shall distribute the trust property in a manner consistent
with the purposes of the trust.
(D) The court may modify or interpret the terms of a trust,
including, but not limited to, a charitable trust or a trust
having as a beneficiary an organization with one or more purposes
that are described in division (A) of section 5804.05 of the
Revised Code, that refer to the federal estate tax, federal
generation-skipping transfer tax, or Ohio estate tax, or that
contain a division of property based on the imposition or amount
of one or more of those taxes, to give effect to the intent of the
settlor.
Sec. 5808.14. (A) The judicial standard of review for
discretionary trusts is that the trustee shall exercise a
discretionary power reasonably, in good faith, and in accordance
with the terms and purposes of the trust and the interests of the
beneficiaries, except that with respect to distribution decisions
a reasonableness standard shall not be applied to the exercise of
discretion by the trustee of a wholly discretionary trust. The
greater the grant of discretion by the settlor to the trustee, the
broader the range of permissible conduct by the trustee in
exercising it.
(B) Subject to division (D) of this section, and unless the
terms of the trust expressly indicate that a rule in this division
does not apply:
(1) A person other than a settlor who is a beneficiary and
trustee of a trust that confers on the trustee a power to make
discretionary distributions to or for the trustee's personal
benefit may exercise the power only in accordance with an
ascertainable standard.
(2) A trustee may not exercise a power to make discretionary
distributions to satisfy a legal obligation of support that the
trustee personally owes another person.
(C) A power whose exercise is limited or prohibited by
division (B) of this section may be exercised by a majority of the
remaining trustees whose exercise of the power is not so limited
or prohibited. If the power of all trustees is so limited or
prohibited, the court may appoint a special fiduciary with
authority to exercise the power.
(D) Division (B) of this section does not apply to any of the
following:
(1) A power held by the settlor's spouse who is the trustee
of a trust for which a marital deduction, as defined in section
2056(b)(5) or 2523(e) of the Internal Revenue Code, was previously
allowed;
(2) Any trust during any period that the trust may be revoked
or amended by its settlor;
(3) A trust if contributions to the trust qualify for the
annual exclusion under section 2503(c) of the Internal Revenue
Code.
(E) For purposes of division (A) of this section, a trustee
who acts reasonably and in good faith in exercising the power to
distribute trust income or principal to the trustee of a second
trust in accordance with division (A) or (B) of section 5808.18 of
the Revised Code is presumed to have acted in accordance with the
terms and purposes of the trust and the interests of the
beneficiaries.
Sec. 5808.17. (A) Upon termination or partial termination of
a trust, the trustee may send to the beneficiaries a proposal for
distribution. The right of any beneficiary to object to the
proposed distribution terminates if the beneficiary does not
notify the trustee of an objection within thirty days after the
proposal was sent but only if the proposal informed the
beneficiary of the right to object and of the time allowed for
objection.
(B) Upon the occurrence of an event terminating or partially
terminating a trust, the trustee shall proceed expeditiously to
distribute the trust property to the persons entitled to it,
subject to the right of the trustee to retain a reasonable reserve
for the payment of debts, expenses, and taxes.
(C) A release by a beneficiary of a trustee from liability
for breach of trust is invalid to the extent that it was induced
by improper conduct of the trustee or that the beneficiary, at the
time of the release, did not know of the beneficiary's rights or
of the material facts relating to the breach.
(D) If a beneficiary who was entitled to receive a
distribution is deceased, the beneficiary's death did not
terminate the beneficiary's right to receive the distribution, and
an administration of the beneficiary's estate is open, the trustee
shall make the distribution to the personal representative of the
beneficiary's estate. If a beneficiary who was entitled to receive
a distribution is deceased, the beneficiary's death did not
terminate the beneficiary's right to receive the distribution, and
an administration of the beneficiary's estate is not open, the
trustee, without liability, may make the distribution directly to
the beneficiary's heirs or devisees without requiring the opening
or re-opening of estate administration proceedings if the trustee
does not know of an adverse claim to the distribution and one of
the following applies:
(1) The beneficiary's estate was administered as an intestate
estate in the jurisdiction in which the beneficiary was domiciled
at death, and the trustee does both of the following:
(a) Distributes the personal property included in the
distribution to the person or persons who were determined to be
the heirs of the beneficiary in that administration, in the same
manner as the personal property would have been distributed if it
had been part of the beneficiary's intestate estate;
(b) Distributes the real property included in the
distribution to the person or persons the trustee reasonably
determines were the beneficiary's heirs under the statutes of
descent and distribution, in effect at the time of the
beneficiary's death, of the jurisdiction or jurisdictions in which
the real property is located.
(2) The beneficiary's estate was administered as a testate
estate in the jurisdiction in which the deceased beneficiary was
domiciled at death, and the trustee does both of the following:
(a) Distributes the personal property included in the
distribution to the residuary devisee or devisees under the
beneficiary's will, in the same manner as the personal property
would have been distributed in that administration if it had been
part of the beneficiary's testate estate;
(b) Distributes the real property included in the
distribution to the person or persons the trustee reasonably
determines would have received the real property under the law of
the jurisdiction or jurisdictions in which the real property is
located.
(3) Division (D)(1) or (2) of this section does not apply,
the beneficiary's death occurred at least six months before the
trustee makes the distribution, and all of the following apply:
(a) The trustee determines that the beneficiary had created a
trust during the beneficiary's life that remained in existence at
the beneficiary's death.
(b) The beneficiary had executed a will that the trustee
reasonably determines would have been admitted to probate if it
had been offered for probate.
(c) The beneficiary's will described in division (D)(3)(b) of
this section devised the residue of the beneficiary's estate to
the trustee of the trust described in division (D)(3)(a) of this
section to be held under the terms of that trust.
(d) The trustee makes the distribution to the trustee of the
trust described in division (D)(3)(a) of this section.
(4) Division (D)(1), (2), or (3) of this section does not
apply, the beneficiary's death occurred at least six months before
the trustee makes the distribution, and all of the following
apply:
(a) The trustee, exercising reasonable diligence, determines
that an administration of the beneficiary's estate has not been
commenced in the jurisdiction in which the trustee reasonably
determines the beneficiary was domiciled at death.
(b) The trustee does not know of an administration of the
beneficiary's estate having been commenced in any other
jurisdiction.
(c) The trustee does not know of a purported last will and
testament of the beneficiary.
(d) The trustee does both of the following:
(i) Distributes the personal property included in the
distribution to the person or persons the trustee reasonably
determines were the beneficiary's heirs under the statutes of
descent and distribution, in effect at the time of the
beneficiary's death, of the jurisdiction in which the trustee
reasonably determines the beneficiary was domiciled at death;
(ii) Distributes the real property included in the
distribution to the person or persons the trustee reasonably
determines were the beneficiary's heirs under the statutes of
descent and distribution, in effect at the time of the
beneficiary's death, of the jurisdiction or jurisdictions in which
the real property is located.
(E) The trustee's protection from liability for making
distributions under division (D) of this section has no effect on
the ability of third parties to pursue claims against the
recipients of those distributions.
Sec. 5808.18. (A) Unless the trust instrument expressly
provides otherwise and subject to the limitations set forth in
this section, all of the following apply:
(1) If a trustee of a trust, referred to in this section as
the "first trust," has absolute power under the terms of the first
trust to make distributions of principal to one or more current
beneficiaries, that trustee may exercise that power by
distributing all or any part of the principal subject to the
power, and all or any part of any income that is not otherwise
currently required to be distributed, to the trustee of another
trust, referred to in this section as the "second trust," that is
for the benefit of one or more current beneficiaries of the first
trust. The second trust may be a trust under the trust instrument
for the first trust or under a different governing instrument,
including a governing instrument created by the trustee of the
first trust. A trustee of a first trust who is authorized to make
distributions to the trustee of a second trust pursuant to
division (A) of this section may do so at any time, whether or not
the trustee of the first trust would otherwise have made a
distribution at that time to, or for the benefit of, any
beneficiary pursuant to the terms of the first trust.
(2) In determining whether a trustee has absolute power to
make distributions of principal to any current beneficiary and the
identity of the current beneficiaries, all of the following apply:
(a) An absolute power to distribute principal includes any
power to make distributions of principal that is not limited by
reasonably definite standards or ascertainable standards, whether
or not the word "absolute" is used in the trust instrument.
(b) A power to make distributions of principal for purposes
that include best interests, welfare, comfort or happiness, or
words of similar import, if not otherwise limited by reasonably
definite standards or ascertainable standards, constitutes an
absolute power not limited by reasonably definite standards or
ascertainable standards, regardless of any requirement to take
into account other resources of the current beneficiary or
beneficiaries to whom those distributions may be made.
(c) If the current beneficiaries of the first trust are
defined, in whole or in part, as a class of persons, that class
includes any person who falls within that class of persons after
the distribution to the second trust.
(d) A power to make distributions for the benefit of a
beneficiary is considered a power to make distributions to that
beneficiary.
(3) If property is distributed pursuant to the authority
described in division (A) of this section, the governing
instrument for the second trust may do either or both of the
following:
(a) Grant a power of appointment to one or more of the
beneficiaries for whose benefit the property was so distributed,
including a power to appoint trust property to the power holder,
the power holder's creditors, the power holder's estate, the
creditors of the power holder's estate, or any other person,
whether or not that person is a beneficiary of the first trust or
the second trust;
(b) Provide that, at a time or upon an event specified in
that governing instrument, the remaining trust property shall
thereafter be held for the benefit of the beneficiaries of the
first trust upon terms and conditions that are substantially
identical to the terms and conditions of the trust instrument for
the first trust, except that any current beneficiary or
beneficiaries for whose benefit the property could have been, but
was not, so distributed may be excluded from having any beneficial
interest in the second trust.
(4) For purposes of division (A)(3) of this section, "terms
and conditions" refer only to those terms and conditions that
govern the interests of the beneficiaries.
(5) For purposes of division (A) of this section, charitable
organizations that are not expressly designated in the terms of
the first trust to receive distributions but to which the trustee
of the first trust, in the discretion of the trustee, or in the
discretion of any other person directing the trustee and acting in
a fiduciary capacity, may at any time make a distribution, are
considered beneficiaries of the first trust.
(B) Unless the trust instrument expressly provides otherwise
and subject to the limitations set forth in this section, a
trustee of a first trust who has power, other than absolute power
as described in division (A) of this section, under the terms of
the first trust to make distributions of principal to one or more
current beneficiaries may exercise that power by distributing all
or any part of the principal subject to the power, and all or any
part of any income that is not otherwise currently required to be
distributed, to the trustee of a second trust. The second trust
may be a trust under the trust instrument for the first trust or
under a different governing instrument, including a governing
instrument created by the trustee of the first trust. The power
described in this division may be exercised whether or not there
is a current need to distribute trust principal under any standard
contained in the first trust. The exercise of a trustee's power
under this division is valid only if the governing instrument for
the second trust does not materially change the interests of the
beneficiaries of the first trust. For purposes of this division, a
power to make distributions for the benefit of a beneficiary shall
be considered a power to make distributions to that beneficiary.
(C) The exercise of the power to make distributions to a
second trust under division (A) or (B) of this section is subject
to the following additional limitations:
(1)(a) The distribution to the trustee of the second trust
shall not result in the reduction, limitation, or modification of
any of the following rights or interests of a beneficiary of the
first trust if the right or interest has come into effect with
respect to the beneficiary:
(i) The current right to a mandatory distribution of income
or principal of the first trust;
(ii) The current mandatory annuity or unitrust interest in
the property of the first trust;
(iii) The right annually to withdraw a percentage of the
value of the first trust or a specified dollar amount.
(b) For purposes of division (C)(1)(a)(i) of this section, a
beneficiary's current right to a distribution of income is not
considered to be mandatory if, under the terms of the first trust,
current distributions of principal may be made to any person other
than that current beneficiary.
(2) If any transfer to the first trust qualified, or if not
for the provisions of division (A) or (B) of this section would
have qualified, for a marital or charitable deduction for purposes
of any federal income, gift, or estate tax under the Internal
Revenue Code, or for purposes of any state income, gift, estate,
or inheritance tax, the governing instrument for the second trust
shall not include or omit any term that, if included in or omitted
from the trust instrument for the first trust, would have
prevented the first trust from qualifying for that deduction, or
would have reduced the amount of the deduction, under the same
provisions of the Internal Revenue Code or under the same
provisions of the applicable state law under which the transfer to
the first trust so qualified.
(3) If any transfer to the first trust has been treated, or
if not for the provisions of division (A) or (B) of this section
would have been treated, as a gift qualifying for the exclusion
from the gift tax described in section 2503(b) of the Internal
Revenue Code, the governing instrument for the second trust shall
not include or omit any term that, if included in or omitted from
the trust instrument for the first trust, would have prevented any
gift to the first trust from so qualifying under the same
provisions of section 2503 of the Internal Revenue Code under
which the transfer to the first trust so qualified.
(4) If the assets of the first trust include any shares of
stock in an S corporation, as defined in section 1361 of the
Internal Revenue Code, and the first trust is, or if not for the
provisions of division (A) or (B) of this section would be, a
permitted shareholder under any provision of section 1361 of the
Internal Revenue Code, the governing instrument for the second
trust shall not include or omit any term that, if included in or
omitted from the trust instrument for the first trust, would have
prevented the first trust from qualifying as a permitted
shareholder of shares of stock in an S corporation under the same
provisions of section 1361 of the Internal Revenue Code under
which the first trust so qualified.
(5) If any transfer to the first trust has been treated, or
if not for the provisions of division (A) or (B) of this section
would have been treated, as a gift qualifying for a zero inclusion
ratio for purposes of the federal generation-skipping transfer tax
under section 2642(c) of the Internal Revenue Code, the governing
instrument for the second trust shall not include or omit any term
that, if included in or omitted from the trust instrument for the
first trust, would have prevented the transfer to the first trust
from so qualifying.
(6) If the assets of the first trust include any interest
subject to the minimum distribution rules of section 401(a)(9) of
the Internal Revenue Code and the treasury regulations issued
under that section, the governing instrument for the second trust
shall not include or omit any term that, if included in or omitted
from the trust instrument for the first trust, would have
shortened the maximum distribution period otherwise allowable
under section 401(a)(9) of the Internal Revenue Code and the
treasury regulations with respect to that interest under the first
trust.
(7)(a) As used in division (C)(7) of this section, "tax
benefit" means any federal or state tax deduction, exemption,
exclusion, or other tax benefit not otherwise listed in division
(C) of this section.
(b) If the trust instrument for the first trust expressly
indicates an intention to qualify for any tax benefit or if the
terms of the trust instrument for the first trust are clearly
designed to enable the first trust to qualify for a tax benefit,
and if the first trust did qualify, or if not for the provisions
of division (A) or (B) of this section would have qualified, for
any tax benefit, the governing instrument for the second trust
shall not include or omit any term that, if included in or omitted
from the trust instrument for the first trust, would have
prevented the first trust from qualifying for that tax benefit.
(8) The distribution to the trustee of the second trust shall
not result in either of the following:
(a) An increase in, or a change in the method of determining,
the compensation of the trustee unless the increase in, or change
in the method of determining, that compensation has been consented
to by all of the persons, other than the trustee of the second
trust, who are current beneficiaries of the second trust or is
approved by the court having jurisdiction over the trust. However,
an increase in compensation of the trustee arising solely because
the duration of the second trust is longer than the duration of
the first trust is not considered an increase in, or a change in
the method of determining, the compensation of the trustee.
(b) A reduction in the standard of care applicable to the
actions of the trustee of the first trust or the second trust or
an exoneration of the trustee of the first trust or the second
trust from liability for actions taken in bad faith or with
willful disregard of the duties of either trustee, including by
increasing the extent to which the trustee is entitled to
indemnification from the trust, as provided in the terms of the
first trust and under any law of this state.
(D) The exercise of the power to distribute trust income or
principal to the trustee of a second trust under division (A) or
(B) of this section shall be by an instrument in writing, signed
by the trustee of the first trust and filed with the records of
the first trust.
(E) The power to distribute trust income or principal to the
trustee of a second trust under division (A) or (B) of this
section shall not be exercised in a manner contrary to any
provision of section 2131.08 of the Revised Code to the extent
applicable to the first trust, and after applying the provisions
of division (B) of section 2131.09 of the Revised Code to the
extent applicable to the first trust. Solely for purposes of
applying under this division the provisions of section 2131.08 and
division (B) of section 2131.09 of the Revised Code, the exercise
of the power to distribute trust income or principal to the
trustee of a second trust under division (A) or (B) of this
section is considered the exercise of a power of appointment other
than a general power of appointment within the meaning of division
(B)(4) of section 2131.09 of the Revised Code.
(F) The trustee of the first trust shall notify all current
beneficiaries of the first trust, in writing, of the intended
distribution to the trustee of a second trust pursuant to division
(A) or (B) of this section not later than thirty days prior to
that distribution. The distribution may be made prior to the
expiration of thirty days from the date on which that notice is
given to all current beneficiaries of the first trust if all of
those current beneficiaries waive the thirty-day period from
receipt of that notice. The trustee's giving of notice of an
intended distribution under this division or the waiver or
expiration of that thirty-day period from receipt of the notice do
not limit the right of any beneficiary to object to the exercise
of the trustee's power to distribute trust principal as provided
in any other applicable provision of the Ohio Trust Code.
(G) Any person, other than the trustee, who has a power
exercisable in a fiduciary capacity to direct the trustee to make
any distribution of principal that, if held by the trustee, would
be a power to make a distribution as described in division (A) or
(B) of this section, may exercise that power by directing the
trustee to make a distribution under either division (A) or (B) of
this section, whichever would be applicable if that person were
the trustee, subject to all of the limitations described in this
section that apply to a trustee's exercise of that power.
(H) The exercise of the power to distribute trust income or
principal to the trustee of a second trust under division (A) or
(B) of this section is not prohibited by a spendthrift clause or a
provision in the trust instrument that prohibits the amendment or
revocation of the trust.
(I) For purposes of division (A) of section 5808.14 of the
Revised Code, a trustee who acts reasonably and in good faith in
exercising the power to distribute trust income or principal to
the trustee of a second trust in accordance with division (A) or
(B) of this section, is presumed to have acted in accordance with
the terms and purposes of the trust and the interests of the
beneficiaries.
(J) Nothing in this section is intended to create or imply a
duty to exercise a power to distribute income or principal of a
trust, and no inference of impropriety shall arise as a result of
a trustee not exercising the power to make any distribution to the
trustee of a second trust under division (A) or (B) of this
section.
(K) If the first trust is a testamentary trust established
under the will of a testator who was domiciled in this state at
the time of the testator's death, the power to distribute trust
income or principal to the trustee of a second trust under
division (A) or (B) of this section may be exercised only if
approved by the court, if any, that has jurisdiction over the
testamentary trust.
(L) Divisions (A) and (B) of this section do not apply to
either of the following:
(1) Any trust during any period that the trust may be revoked
or amended by its settlor;
(2) Any trustee with respect to any portion of the first
trust as to which that trustee is also the settlor.
(M) If, and to the extent that, a trustee makes any
distribution pursuant to division (A) or (B) of this section to
the trustee of a second trust, then for purposes of division (W)
of section 5801.01 of the Revised Code, the governing instrument
for the second trust is considered to be an amendment of the trust
instrument signed by the settlor of the first trust, even if that
governing instrument is signed by a person other than that
settlor.
(N) Nothing in this section shall be construed to limit the
power of any trustee to distribute trust property in further
trust, whether that power arises under the terms of the trust
instrument, under any other section of Title LVIII of the Revised
Code, under any other statute, or under the common law. The terms
of a trust instrument may do any of the following:
(1) Confer upon the trustee the power to make any
distribution, or confer upon any other person acting in a
fiduciary capacity the power to direct the trustee to make any
distribution, in further trust that is broader or more limited
than, or that conflict with, the provisions of this section;
(2) Provide for different requirements for notice to
beneficiaries of the trust of the trustee's exercise of the power
conferred under the terms of the trust instrument or described in
division (A) or (B) of this section;
(3) Waive any requirement of notice to the beneficiaries of
the trust of the trustee's exercise of the power conferred under
the terms of the trust instrument or described in division (A) or
(B) of this section;
(4) Otherwise include any terms and conditions governing the
distribution in further trust that the settlor of the trust
determines.
(O)(1) Division (A) of this section is intended to be a
codification of the common law of this state in effect prior to
the enactment of this section and applies to distributions,
whenever made, from any trust that is governed by the law of this
state or that has its principal place of administration in this
state, whether that trust was created before, on, or after the
effective date of this section.
(2) Division (B) of this section applies to distributions
made on or after the effective date of this section from any trust
that is governed by the law of this state or that has its
principal place of administration in this state, whether that
trust was created before, on, or after the effective date of this
section.
Sec. 5808.19. (A) As used in this section, unless otherwise
provided in any other provision in this section:
(1) "Beneficiary" means the beneficiary of a future interest
and includes a class member if the future interest is in the form
of a class gift.
(2) "Class member" means an individual who fails to survive
the distribution date by at least one hundred twenty hours but who
would have taken under a future interest in the form of a class
gift had the individual survived the distribution date by at least
one hundred twenty hours.
(3) "Descendant of a grandparent of the transferor" means an
individual who would qualify as a descendant of a grandparent of
the transferor under the rules of construction that would apply to
a class gift under the transferor's will to the descendants of the
transferor's grandparent.
(4) "Distribution date," with respect to a future interest,
means the time when the future interest is to take effect in
possession or enjoyment. The distribution date need not occur at
the beginning or end of a calendar day but may occur at a time
during the course of a day.
(5) "Future interest" means an alternative future interest or
a future interest in the form of a class gift.
(6) "Future interest under the terms of a trust" means a
future interest that was created by a transfer creating a trust or
a transfer to an existing trust, or by an exercise of a power of
appointment to an existing trust, that directs the continuance of
an existing trust, designates a beneficiary of an existing trust,
or creates a trust.
(7) "Per stirpes" means that the shares of the descendants of
a beneficiary who does not survive the distribution date by at
least one hundred twenty hours are determined in the same way they
would have been determined under division (A) of section 2105.06
of the Revised Code if the beneficiary had died intestate and
unmarried on the distribution date.
(8) "Revocable trust" means a trust that was revocable
immediately before the settlor's death by the settlor alone or by
the settlor with the consent of any person other than a person
holding an adverse interest. A trust's characterization as
revocable is not affected by the settlor's lack of capacity to
exercise the power of revocation, regardless of whether an agent
of the settlor under a power of attorney, or a guardian of the
person or estate of the settlor, was serving.
(9) "Stepchild" means a child of the surviving, deceased, or
former spouse of the transferor and not of the transferor.
(10) "Transferor" means any of the following:
(a) The donor and donee of a power of appointment, if the
future interest was in property as a result of the exercise of a
power of appointment;
(b) The testator, if the future interest was devised by will;
(c) The settlor, if the future interest was conveyed by inter
vivos trust.
(B)(1)(a) As used in "surviving descendants" in divisions
(B)(2)(b)(i) and (ii) of this section, "descendants" means the
descendants of a deceased beneficiary or class member who would
take under a class gift created in the trust.
(b) As used in divisions (B)(2)(b)(i) and (ii) of this
section, "surviving beneficiaries" or "surviving descendants"
means beneficiaries or descendants, whichever is applicable, who
survive the distribution date by at least one hundred twenty
hours.
(2) Unless a contrary intent appears in the instrument
creating a future interest under the terms of a trust, each of the
following applies:
(a) A future interest under the terms of a trust is
contingent on the beneficiary's surviving the distribution date by
at least one hundred twenty hours.
(b) If a beneficiary of a future interest under the terms of
a trust does not survive the distribution date by at least one
hundred twenty hours and if the beneficiary is a grandparent of
the transferor, a descendant of a grandparent of the transferor,
or a stepchild of the transferor, either of the following applies:
(i) If the future interest is not in the form of a class gift
and the deceased beneficiary leaves surviving descendants, a
substitute gift is created in the beneficiary's surviving
descendants. The surviving descendants take, per stirpes, the
property to which the beneficiary would have been entitled had the
beneficiary survived the distribution date by at least one hundred
twenty hours.
(ii) If the future interest is in the form of a class gift,
other than a future interest to "issue," "descendants," "heirs of
the body," "heirs," "next of kin," "relatives," or "family," or a
class described by language of similar import, a substitute gift
is created in the surviving descendants of the deceased
beneficiary or beneficiaries. The property to which the
beneficiaries would have been entitled had all of them survived
the distribution date by at least one hundred twenty hours passes
to the surviving beneficiaries and the surviving descendants of
the deceased beneficiaries. Each surviving beneficiary takes the
share to which the surviving beneficiary would have been entitled
had the deceased beneficiaries survived the distribution date by
at least one hundred twenty hours. Each deceased beneficiary's
surviving descendants who are substituted for the deceased
beneficiary take, per stirpes, the share to which the deceased
beneficiary would have been entitled had the deceased beneficiary
survived the distribution date by at least one hundred twenty
hours. For purposes of division (B)(2)(b)(ii) of this section,
"deceased beneficiary" means a class member who failed to survive
the distribution date by at least one hundred twenty hours and
left one or more surviving descendants.
(C) For purposes of this section, each of the following
applies:
(1) Describing a class of beneficiaries as "surviving" or
"living," without specifying when the beneficiaries must be
surviving or living, such as a gift "for my spouse for life, then
to my surviving (or living) children," is not, in the absence of
other language in the trust instrument or other evidence to the
contrary, a sufficient indication of an intent to negate the
application of division (B)(2)(b) of this section.
(2) Subject to division (C)(1) of this section, attaching
words of survivorship to a future interest under the terms of a
trust, such as "for my spouse for life, then to my children who
survive my spouse" or "for my spouse for life, then to my
then-living children" is, in the absence of other language in the
trust instrument or other evidence to the contrary, a sufficient
indication of an intent to negate the application of division
(B)(2)(b) of this section. Words of survivorship under division
(C)(2) of this section include words of survivorship that relate
to the distribution date or to an earlier or an unspecified time,
whether those words of survivorship are expressed as
condition-precedent, condition-subsequent, or in any other form.
(3) A residuary clause in a will is not a sufficient
indication of an intent that is contrary to the application of
this section, whether or not the will specifically provides that
lapsed or failed devises are to pass under the residuary clause. A
residuary clause in a revocable trust instrument is not a
sufficient indication of an intent that is contrary to the
application of this section unless the distribution date is the
date of the settlor's death and the revocable trust instrument
specifically provides that upon lapse or failure the nonresiduary
devise, or nonresiduary devises in general, pass under the
residuary clause.
(D) If, after the application of divisions (B) and (C) of
this section there is no surviving taker of the property, and a
contrary intent does not appear in the instrument creating the
future interest, the property passes in the following order:
(1) If the future interest was created by the exercise of a
power of appointment, the property passes under the donor's
gift-in-default clause, if any, which clause is treated as
creating a future interest under the terms of a trust.
(2) If no taker is produced under division (D)(1) of this
section and the trust was created in a nonresiduary devise in the
transferor's will or in a codicil to the transferor's will, the
property passes under the residuary clause in the transferor's
will. For purposes of division (D)(2) of this section, the
residuary clause is treated as creating a future interest under
the terms of a trust.
(3) If no taker is produced under divisions (D)(1) and (2) of
this section, the transferor is deceased, and the trust was
created in a nonresiduary gift under the terms of a revocable
trust of the transferor, the property passes under the residuary
clause in the transferor's revocable trust instrument. For
purposes of division (D)(3) of this section, the residuary clause
in the transferor's revocable trust instrument is treated as
creating a future interest under the terms of a trust.
(4) If no taker is produced under divisions (D)(1), (2), and
(3) of this section, the property passes to those persons who
would succeed to the transferor's intestate estate and in the
shares as provided in the intestate succession law of the
transferor's domicile if the transferor died on the distribution
date. Notwithstanding division (A)(10) of this section, for
purposes of division (D)(4) of this section, if the future
interest was created by the exercise of a power of appointment,
"transferor" means the donor if the power is a nongeneral power,
or the donee if the power is a general power.
(E) This section applies to all trusts that become
irrevocable on or after the effective date of this section. This
section does not apply to any trust that was irrevocable before
the effective date of this section even if property was added to
the trust on or after that effective date.
Sec. 5809.031. (A) Notwithstanding any other provision of the
Ohio Uniform Prudent Investor Act, unless otherwise provided by
the terms of the trust, the duties of a trustee with respect to
the acquisition, retention, or ownership of a life insurance
policy as a trust asset do not include any of the following
duties:
(1) To determine whether the policy is or remains a proper
investment;
(2) To diversify the investment in the policy relative to any
other life insurance policies or to any other trust assets;
(3) To exercise or not to exercise any option, right, or
privilege available under the policy, including the payment of
premiums, unless there is sufficient cash or there are other
readily marketable trust assets from which to pay the premiums or
there are other trust assets that were designated by the settlor
or any other person transferring those assets to the trust to be
used for that purpose, regardless of whether that exercise or
nonexercise results in the lapse or termination of the policy;
(4) To investigate the financial strength or changes in the
financial strength of the life insurance company maintaining the
policy;
(5) To inquire about changes in the health or financial
condition of the insured or insureds under the policy.
(B) The trustee, the attorney who drafted a trust, or any
person who was consulted with regard to the creation of a trust,
in the absence of fraud, is not liable to the beneficiaries of the
trust or to any other person for any loss arising from the absence
of the duties specified in divisions (A)(1) to (5) of this
section.
(C) Unless otherwise provided by the terms of the trust, this
section applies to a trust established before, on, or after the
effective date of this section and to a life insurance policy
acquired, retained, or owned by a trustee before, on, or after the
effective date of this section.
Sec. 5810.13. (A) Instead of furnishing a copy of the trust
instrument to a person other than a beneficiary, the trustee may
furnish to the person a certification of trust containing all of
the following information:
(1) A statement that the trust exists and the date the trust
instrument was executed;
(2) The identity of the settlor;
(3) The identity and address of the currently acting trustee;
(4) The powers of the trustee;
(5) The revocability or irrevocability of the trust and the
identity of any person holding a power to revoke the trust;
(6) The authority of cotrustees to sign or otherwise
authenticate and whether all or less than all are required in
order to exercise powers of the trustee.
(B) Any trustee may sign or otherwise authenticate a
certification of trust.
(C) A certification of trust shall state that the trust has
not been revoked, modified, or amended in any manner that would
cause the representations contained in the certification of trust
to be incorrect.
(D) A certification of trust is not required to contain the
dispositive terms of a trust.
(E) A certification of trust may establish the identity of
the trustee and any succession of trustees under division (B) or
(C) of section 5810.14 of the Revised Code.
(F) A recipient of a certification of trust may require the
trustee to furnish copies of those excerpts from the original
trust instrument and later amendments that designate the trustee
and confer upon the trustee the power to act in the pending
transaction.
(F)(G) A person who acts in reliance upon a certification of
trust without knowledge that the representations contained in the
certification are incorrect is not liable to any person for so
acting and may assume without inquiry the existence of the facts
contained in the certification. Knowledge of the terms of the
trust may not be inferred solely from the fact that a copy of all
or part of the trust instrument is held by the person relying upon
the certification.
(G)(H) A person who in good faith enters into a transaction
in reliance upon a certification of trust may enforce the
transaction against the trust property as if the representations
contained in the certification were correct.
(H)(I) This section does not affect the use or validity of a
memorandum of trust under section 5301.255 of the Revised Code.
(I)(J) This section does not limit the right of a person to
obtain a copy of the trust instrument in a judicial proceeding
concerning the trust.
Sec. 5810.14. (A) Personal property may be transferred to a
trustee as authorized by section 5804.01 of the Revised Code by
executing the necessary written instrument that identifies the
personal property transferred and identifies the trustee by name
followed by the designation "trustee."
(B) The future transfer of personal property to a trustee as
a designated beneficiary, including, but not limited to, a
transfer on death designation or payable on death designation,
participation in a joint ownership arrangement, or any other
contractual transfer arrangement, that is made by executing the
necessary written instrument identifying the trustee by name
followed by the designation "trustee" shall be considered a
transfer of the personal property to the trustee serving at the
time of the future transfer. A certification of trust under
section 5810.13 of the Revised Code may establish the identity of
the trustee and any succession of trustees.
(C) A written instrument transferring personal property to a
trust or a written instrument providing for the future transfer of
personal property to a trust, by identifying the trust without
identifying the trustee, shall be considered a transfer of the
personal property to the trustee serving at the time of transfer.
A certification of trust under section 5810.13 of the Revised Code
may establish the identity of the trustee and any succession of
trustees.
(D) An instrument of transfer under this section may, but is
not required to, contain any additional identifying information,
including the trust name, the name of the settlor, the date of
trust creation, and the date of applicable trust amendments.
(E) Nothing in this section is intended to affect the
operation of section 5301.03 of the Revised Code.
(F) Nothing in this section is intended to affect or be in
conflict with division (E) of section 5301.071 of the Revised Code
that addresses transfers of real property to or from trusts and
trustees.
Section 2. That existing sections 1337.092, 1337.12,
2101.24, 2109.21, 2111.02, 2111.12, 2111.121, 5301.071, 5747.02,
5801.10, 5804.12, 5808.14, 5808.17, and 5810.13 and sections
1337.09,
1337.091, 1337.093, 1337.18, 1337.19, 1337.20, and
2107.52 of the Revised Code are hereby repealed.
Section 3. Section 2101.24 of the Revised Code is presented
in this act as a composite of the section as amended by both Sub.
H.B. 416 and Sub. H.B. 426 of the 126th General Assembly. The
General Assembly, applying the principle stated in division (B) of
section 1.52 of the Revised Code that amendments are to be
harmonized if reasonably capable of simultaneous operation, finds
that the composite is the resulting version of the section in
effect prior to the effective date of the section as presented in
this act.
Section 4. The General Assembly hereby declares its intent by
this act to clarify the procedure for resolution of issues created
by the past or future repeal or reenactment of the federal estate
tax, federal generation-skipping transfer tax, and Ohio estate
tax.
Section 5. The amendment of sections 1337.092, 1337.12,
2101.24, 2109.21, 2111.02, 2111.12, 2111.121, 5301.071, 5747.02,
5808.14, 5808.17, and 5810.13, and the enactment of new section
2107.52 and sections 1337.21, 1337.22, 1337.23, 1337.24, 1337.25,
1337.26, 1337.27, 1337.28, 1337.29, 1337.30, 1337.31, 1337.32,
1337.33, 1337.34, 1337.35, 1337.36, 1337.37, 1337.38, 1337.39,
1337.40, 1337.41, 1337.42, 1337.43, 1337.44, 1337.45, 1337.46,
1337.47, 1337.48, 1337.49, 1337.50, 1337.51, 1337.52, 1337.53,
1337.54, 1337.55, 1337.56, 1337.57, 1337.58, 1337.59, 1337.60,
1337.61, 1337.62, 1337.63, 1337.64, 3793.31, 3793.32, 3793.33,
3793.34, 3793.35, 3793.36, 3793.37, 3793.38, 3793.39, 5808.18,
5808.19, 5809.031, and 5810.14 of the Revised Code shall take
effect on the ninetieth day after the effective date of this act.
Section 6. This act is hereby declared to be an emergency
measure necessary for the immediate preservation of the public
peace, health, and safety. The reason for such necessity is that
the federal estate tax and federal generation-skipping transfer
tax have been repealed and then reenacted, adversely affecting
wills and trust instruments that did not deal with such repeal.
Therefore, this act shall go into immediate effect.
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