As Introduced
132nd General Assembly
Regular Session H. B. No. 595
2017-2018
Representatives Cupp, Rezabek
Cosponsors: Representatives Seitz, Riedel
A BILL
To amend sections 313.14, 2101.24, 2107.01, 2107.05, 2107.07, 2107.08, 2107.09, 2107.10, 2107.11, 2107.12, 2107.16, 2107.18, 2107.20, 2107.22, 2107.33, 2107.52, 2107.71, 2137.01, 2721.03, 5802.03, 5806.04, and 5808.19, to enact sections 2111.182, 2111.52, 5802.05, 5817.01, 5817.02, 5817.03, 5817.04, 5817.05, 5817.06, 5817.07, 5817.08, 5817.09, 5817.10, 5817.11, 5817.12, 5817.13, and 5817.14, and to repeal sections 2107.081, 2107.082, 2107.083, 2107.084, and 2107.085 of the Revised Code relative to procedures for a testator to file a declaratory judgment action to declare the validity of a will prior to death and the settlor of a trust to file such an action to declare its validity, exceptions to antilapse provisions in class gifts in wills and trusts, incorporation of a written trust into a will, trusts for a minor, arbitration of trust disputes, the creation of county and multicounty guardianship services boards, and coroner's disposition of person dying of suspicious or unusual death.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 313.14, 2101.24, 2107.01, 2107.05, 2107.07, 2107.08, 2107.09, 2107.10, 2107.11, 2107.12, 2107.16, 2107.18, 2107.20, 2107.22, 2107.33, 2107.52, 2107.71, 2137.01, 2721.03, 5802.03, 5806.04, and 5808.19 be amended and sections 2111.182, 2111.52, 5802.05, 5817.01, 5817.02, 5817.03, 5817.04, 5817.05, 5817.06, 5817.07, 5817.08, 5817.09, 5817.10, 5817.11, 5817.12, 5817.13, and 5817.14 of the Revised Code be enacted to read as follows:
Sec.
313.14. (A)(1)
The coroner shall make
a reasonable effort
to notify
any known relatives of a deceased person who meets
death in the manner described by section 313.12 of the Revised
Code by letter or otherwise. The
next of kin, other relatives,
or friends of the deceased person, in the order named,
shall have prior right as to disposition of the body of such
deceased person. If relatives of the deceased are unknown, the
coroner shall make a diligent effort to ascertain the next of
kin, other relatives, or friends of the deceased person
coroner
shall also make a reasonable effort to determine the identity
of the person who has been assigned the rights of disposition
for the deceased person under sections 2108.70 to 2108.90
of the Revised Code and shall notify that person. After the
coroner has completed the performance of the coroner's
legal duties
with respect to the body of the deceased person, the coroner
shall return the body to that person.
(2)
The
coroner shall take charge and possession of all moneys,
clothing, and other valuable personal effects of such
the
deceased
person, found in connection with or pertaining to such
the
body,
and shall store such
the
possessions
in the county coroner's office or such
other suitable place as is provided for
such
that
storage
by the board of county commissioners. If
the coroner considers it advisable, the coroner
may, after taking adequate precautions for the security of
such
those
possessions,
store the possessions where the coroner
finds them until other storage space becomes available.
The
person who has been assigned the rights of disposition for the
deceased person under sections 2108.70 to 2108.90 of the Revised
Code may request the coroner to give those possessions to
that person.
(B)
In cases in which the cost of the burial is paid by the
county, after using such of the clothing as is necessary in the
burial of the body, the coroner shall sell at public auction the
valuable personal effects of such
the
deceased
persons, found
in connection with or pertaining to the unclaimed dead body,
except firearms, which shall be disposed of as provided in division
(C) of this section. The coroner shall make a verified inventory
of such
the
effects
and they shall be sold within eighteen
months after burial, or after delivery of such
the
body
in
accordance with section 1713.34 of the Revised Code. All moneys
derived from such
the
sale
shall be deposited in the county
treasury. A notice of such
the
sale
shall be given in one newspaper
of general circulation in the county, for five days in succession,
and the sale shall be held immediately thereafter. The
cost of such advertisement and notices shall be paid by the board
upon the submission of a verified statement
therefor
for that
cost,
certified to the coroner.
(C) If a firearm is included in the personal effects of a deceased person who meets death in the manner described by section 313.12 of the Revised Code, the coroner shall deliver the firearm to the chief of police of the municipal corporation within which the body is found, or to the sheriff of the county if the body is not found within a municipal corporation. Upon delivery of the firearm to the chief of police or the sheriff, the chief of police or sheriff shall give the coroner a receipt for the firearm that states the date of delivery and an accurate description of the firearm. The firearm shall be used for evidentiary purposes only.
The
person
who has been assigned the rights of disposition for
the deceased person's
next of kin or other relative person
under
sections 2108.70 to 2108.90 of the Revised Code
may request that the firearm be given to the
next of kin or other relative
that
person
once the firearm is no longer needed for
evidentiary purposes. The chief of police or the sheriff shall give
the firearm to the
next of kin or other relative that
person
who requested the firearm only if the next
of kin or other
relative person
may lawfully possess the firearm under
applicable law of this state or the United States. The chief of
police or the sheriff shall keep a record identifying the next
of
kin or other relative person
to whom the firearm is given, the date the
firearm was given to
the next of kin or other relative
that person, and an accurate description of
the firearm.
If
a
next of kin or other relative the
person who has been assigned
the rights of disposition for the deceased person under sections
2108.70 to 2108.90 of the Revised Code
does
not request the
firearm or is not entitled to possess the firearm, the firearm
shall be used at the discretion of the chief of police or
the sheriff.
(D) This section does not invalidate section 1713.34 of the Revised Code.
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, as a result of intellectual disability, 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 property contracts on petition of executors and administrators;
(k) To construe wills;
(l)
To render declaratory judgments, including, but not limited
to, those rendered pursuant to section
2107.084 Chapter
5817.
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 act for and issue orders regarding wards pursuant to section 2111.50 of the Revised Code;
(s) To hear and determine actions against sureties on the bonds of fiduciaries appointed by the probate court;
(t) 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;
(u) 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;
(v) To hear and determine actions commenced by objecting individuals, in accordance with section 2133.05 of the Revised Code;
(w) 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;
(x) 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;
(y) To hear and determine applications of attending physicians in accordance with division (B) of section 2133.15 of the Revised Code;
(z) 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;
(aa) To hear and determine applications for an order relieving an estate from administration under section 2113.03 of the Revised Code;
(bb) To hear and determine applications for an order granting a summary release from administration under section 2113.031 of the Revised Code;
(cc) To hear and determine actions relating to the exercise of the right of disposition, in accordance with section 2108.90 of the Revised Code;
(dd) To hear and determine actions relating to the disinterment and reinterment of human remains under section 517.23 of the Revised Code;
(ee) To hear and determine petitions for an order for treatment of a person suffering from alcohol and other drug abuse filed under section 5119.93 of the Revised Code and to order treatment of that nature in accordance with, and take other actions afforded to the court under, sections 5119.90 to 5119.98 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)(t) and (y) 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;
(c) Subject to section 2101.31 of the Revised Code, any action with respect to a probate estate, guardianship, trust, or post-death dispute that involves any of the following:
(i) A designation or removal of a beneficiary of a life insurance policy, annuity contract, retirement plan, brokerage account, security account, bank account, real property, or tangible personal property;
(ii) A designation or removal of a payable-on-death beneficiary or transfer-on-death beneficiary;
(iii) A change in the title to any asset involving a joint and survivorship interest;
(iv) An alleged gift;
(v) The passing of assets upon the death of an individual otherwise than by will, intestate succession, or trust.
(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.
(3) Notwithstanding that the probate court has exclusive jurisdiction to render declaratory judgments under Chapter 5817. of the Revised Code, the probate court may transfer the proceeding to the general division of the court of common pleas pursuant to division (A) of section 5817.04 of the Revised Code.
(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. 2107.01. As used in Chapters 2101. to 2131. of the Revised Code:
(A)
"Will" includes codicils to wills admitted to probate,
lost,
spoliated, or destroyed wills, and instruments admitted
to probate
declared
valid under
division
(A)(1) of section
2107.081
5817.10
of
the Revised Code, but "will" does not include inter vivos
trusts or other instruments that have not been admitted to probate.
(B) "Testator" means any person who makes a will.
Sec. 2107.05. (A) An existing document, book, record, or memorandum may be incorporated in a will by reference, if referred to as being in existence at the time the will is executed. That document, book, record, or memorandum shall be deposited in the probate court when the will is probated or within thirty days after the will is probated, unless the court grants an extension of time for good cause shown. A copy may be substituted for the original document, book, record, or memorandum if the copy is certified to be correct by a person authorized to take acknowledgments.
(B) Notwithstanding division (A) of this section, if a will incorporates a trust instrument only in the event that a bequest or devise to the trust is ineffective, the trust instrument shall be deposited in the probate court not later than thirty days after the final determination that such bequest or devise is ineffective.
(C) If a testator intends to incorporate a trust instrument in a will, the testator's will shall manifest that intent through the use of the term "incorporate," "made a part of," or similar language. In the absence of such clear and express intent, a trust instrument shall not be incorporated into or made a part of the will. Any language in the testator's will that only identifies a trust shall not be sufficient to manifest an intent to incorporate that trust instrument by reference in the will.
(D) The amendment of this section by adding divisions (B) and (C) applies, and shall be construed as applying, to the wills of testators who die on or after the effective date of this amendment.
Sec. 2107.07. A will may be deposited by the testator, or by some person for the testator, in the office of the judge of the probate court in the county in which the testator lives, before or after the death of the testator, and if deposited after the death of the testator, with or without applying for its probate. Upon the payment of the fee of twenty-five dollars to the court, the judge shall receive, keep, and give a certificate of deposit for the will. That will shall be safely kept until delivered or disposed of as provided by section 2107.08 of the Revised Code. If the will is not delivered or disposed of as provided in that section within one hundred years after the date the will was deposited, the judge may dispose of the will in any manner the judge considers feasible. The judge shall retain an electronic copy of the will prior to its disposal after one hundred years under this section.
Every
will that is so deposited shall be enclosed in a sealed envelope that
shall be indorsed with the name of the testator. The judge shall
indorse on the envelope the date of delivery and the person by whom
the will was delivered. The envelope may be indorsed with the name of
a person to whom it is to be delivered after the death of the
testator. The will shall not be opened or read until delivered to a
person entitled to receive it, until the testator files a complaint
in the probate court for a declaratory judgment of the validity of
the will pursuant to section 2107.081
5817.02
of
the Revised Code, or until
otherwise disposed of as provided in section 2107.08 of the
Revised Code. Subject to section 2107.08 of the Revised Code,
the deposited will shall not be a public record until the time
that an application is filed to probate it.
Sec.
2107.08.
During the lifetime of a testator, the testator's
will, deposited according to section 2107.07 of the Revised
Code, shall be delivered only to the testator, to some person
authorized by the testator by a written order, or to a probate
court for a determination of its validity when the testator
so requests. After the testator's death, the will shall be
delivered to the person named in the indorsement on the envelope
of the will, if there is a person named who demands it. If
the testator has filed a complaint in the probate court for a
judgment
declaring the validity of the will pursuant to section 2107.081
5817.02
of
the Revised Code and the
court has rendered the
a
judgment
is rendered pursuant to division (A)(1) of section
5817.10 of the Revised Code declaring the will valid,
the
probate
judge
with
possession of
the court who rendered the judgment
shall
deliver the will to the proper probate court as determined
under section 2107.11 of the Revised Code, upon the death
of the testator, for probate.
If
no person named in the indorsement demands the will and it
is not one that has been declared valid pursuant to division
(A)(1)
of section
2107.084
5817.10
of
the Revised Code, it shall be
publicly opened in the probate court within one month after notice
of the testator's death and retained in the office of the probate
judge until offered for probate. If the jurisdiction belongs
to any other probate court, the will shall be delivered to
the person entitled to its custody, to be presented for probate
in the other court. If the probate judge who opens the will
has jurisdiction of it, the probate judge immediately shall give
notice of its existence to the executor named in the will or,
if any, to the persons holding a power to nominate an executor
as described in section 2107.65 of the Revised Code, or,
if it is the case, to the executor named in the will and to the
persons holding a power to nominate a coexecutor as described
in that section. If no executor is named and no persons
hold a power to nominate an executor as described in that
section, the probate judge shall give notice to other persons
immediately interested.
Sec. 2107.09. (A) If real property is devised or personal property is bequeathed by a will, the executor or any interested person may cause the will to be brought before the probate court of the county in which the decedent was domiciled. By judicial order, the court may compel the person having the custody or control of the will to produce it before the court for the purpose of being proved.
If the person having the custody or control of the will intentionally conceals or withholds it or neglects or refuses to produce it for probate without reasonable cause, the person may be committed to the county jail and kept in custody until the will is produced. The person also shall be liable to any party aggrieved for the damages sustained by that neglect or refusal.
Any judicial order issued pursuant to this section may be issued into any county in the state and shall be served and returned by the officer to whom it is delivered.
The officer to whom the process is delivered shall be liable for neglect in its service or return in the same manner as sheriffs are liable for neglect in not serving or returning a capias issued upon an indictment.
(B)
In the case of a will that has been declared valid pursuant to
division
(A)(1) of section
2107.084
5817.10
of
the Revised
Code, the probate
judge
of
the probate court or of the general
division of the court of common pleas to which the proceeding
was transferred pursuant to division (A) of section 5817.04
of the Revised Code who
made the declaration or
who has possession
of the will shall
cause the
will and the
judgment declaring
validity
the
will valid to
be brought before the proper
probate court as determined by section 2107.11 of the Revised
Code at a time after the death of the testator. If the death
of the testator is brought to the attention of the probate
applicable
judge
by an interested party, the judge shall cause the
judgment
declaring the will
valid
to
be brought before the proper
probate court at that time.
Sec. 2107.10. (A) No property or right, testate or intestate, shall pass to a beneficiary named in a will who knows of the existence of the will for one year after the death of the testator and has the power to control it and, without reasonable cause, intentionally conceals or withholds it or neglects or refuses within that one year to cause it to be offered for or admitted to probate. The property devised or bequeathed to that beneficiary shall pass as if the beneficiary had predeceased the testator.
(B)
No property or right, testate or intestate, passes to a
beneficiary named in a will when the will was declared valid and
filed with a probate judge by
a court pursuant
to division
(A)(1)
of section
2107.084
5817.10
of
the Revised Code, the declaration
and
filing took
place in a county different from the county
in which the will of the testator would be probated under section
2107.11 of the Revised Code, and the named beneficiary knew
of the declaration and
filing and
of the death of the testator
and did not notify the probate
judge
with
whom of
the court
in which the
will was
filed
declared valid.
This division does
not preclude a named beneficiary from acquiring property or rights
from the estate of the testator for failing to notify a probate
judge
of
that court if
the named beneficiary reasonably believes
that the judge has previously been notified of the testator's
death.
Sec. 2107.11. (A) A will shall be admitted to probate:
(1) In the county in this state in which the testator was domiciled at the time of the testator's death;
(2) In any county of this state where any real property or personal property of the testator is located if, at the time of the testator's death, the testator was not domiciled in this state, and provided that the will has not previously been admitted to probate in this state or in the state of the testator's domicile;
(3)
In the county of this state in which a probate
court
rendered
a judgment declaring that the will was valid
and in which
the will was filed with the probate court
pursuant to division
(A)(1) of section 5817.10 of the Revised Code.
(B) For the purpose of division (A)(2) of this section, intangible personal property is located in the place where the instrument evidencing a debt, obligation, stock, or chose in action is located or if there is no instrument of that nature where the debtor resides.
Sec.
2107.12.
When a will is presented for probate or for a
declaratory judgment of its validity pursuant to section
2107.081
Chapter
5817. of
the Revised Code, persons interested in
its outcome may contest the jurisdiction of the court to entertain
the application. Preceding a hearing of a contest as to
jurisdiction, all parties named in such will as legatees, devisees,
trustees, or executors shall have notice thereof
of
the
hearing in
such manner as may be ordered by the court.
When
such
that
contest
is made, the
parties
may call witnesses
and shall be heard upon the question involved. The decision
of the court as to its jurisdiction may be reviewed on error.
Sec. 2107.16. (A) When offered for probate, a will may be admitted to probate and allowed upon such proof as would be satisfactory, and in like manner as if an absent or incompetent witness were dead:
(1) If it appears to the probate court that a witness to such will has gone to parts unknown;
(2) If the witness was competent at the time of attesting its execution and afterward became incompetent;
(3) If testimony of a witness cannot be obtained within a reasonable time.
(B)
When offered for probate, a will shall be admitted to probate and
allowed when there has been a prior judgment by a probate
court
declaring that the will is valid pursuant to division
(A)(1) of section
2107.084
5817.10
of
the Revised Code, if
the will has
not been removed from the possession of the probate
judge and has
not been modified
or revoked
under division
(C) or (D) of section 2107.084 of the Revised Code.
Sec. 2107.18. The probate court shall admit a will to probate if it appears from the face of the will, or if the probate court requires, in its discretion, the testimony of the witnesses to a will and it appears from that testimony, that the execution of the will complies with the law in force at the time of the execution of the will in the jurisdiction in which it was executed, with the law in force in this state at the time of the death of the testator, or with the law in force in the jurisdiction in which the testator was domiciled at the time of the testator's death.
The
probate court shall admit a will to probate when there has
been a prior judgment by a probate
court
declaring that the will
is valid, rendered pursuant to division
(A)(1) of section
2107.084
5817.10
of
the Revised Code, if the will has
not been removed
from the possession of the probate judge and has
not been
modified
or revoked
under division (C) or (D) of section 2107.084
of the Revised Code.
Sec.
2107.20.
When admitted to probate every will shall be filed
in the office of the probate judge and recorded, together with
any testimony or prior judgment of a probate
court
declaring
the will valid
pursuant to division (A)(1) of section 5817.10
of the Revised Code,
by the judge or the clerk of the probate
court in a book to be kept for that purpose.
A copy of the recorded will, with a copy of the order of probate annexed to the copy of the recorded will, certified by the judge under seal of the judge's court, shall be as effectual in all cases as the original would be, if established by proof.
Sec. 2107.22. (A)(1)(a) When a will has been admitted to probate by a probate court and another will of later date is presented to the same court for probate, notice of the will of later date shall be given to those persons required to be notified under section 2107.19 of the Revised Code, and to the fiduciaries and beneficiaries under the will of earlier date. The probate court may admit the will of later date to probate the same as if no earlier will had been so admitted if it appears from the face of the will of later date, or if an interested person makes a demand as described in division (A)(1)(b) of this section and it appears from the testimony of the witnesses to the will given in accordance with that division, that the execution of the will complies with the law in force at the time of the execution of the will in the jurisdiction in which it was executed, with the law in force in this state at the time of the death of the testator, or with the law in force in the jurisdiction in which the testator was domiciled at the time of the testator's death.
(b) Upon the demand of a person interested in having a will of later date admitted to probate, the probate court shall cause at least two of the witnesses to the will of later date, and any other witnesses that the interested person desires to have appear, to come before the probate court and provide testimony. If the interested person so requests, the probate court shall issue a subpoena to compel the presence of any such witness before the probate court to provide testimony.
Witnesses before the probate court pursuant to this division shall be examined, and may be cross-examined, in open court, and their testimony shall be reduced to writing and then filed in the records of the probate court pertaining to the testator's estate.
(2) When an authenticated copy of a will has been admitted to record by a probate court, and an authenticated copy of a will of later date that was executed and proved as required by law, is presented to the same court for record, it shall be admitted to record in the same manner as if no authenticated copy of the will of earlier date had been so admitted.
(3) If a probate court admits a will of later date to probate, or an authenticated copy of a will of later date to record, its order shall operate as a revocation of the order admitting the will of earlier date to probate, or shall operate as a revocation of the order admitting the authenticated copy of the will of earlier date to record. The probate court shall enter on the record of the earlier will a marginal note "later will admitted to probate ..." (giving the date admitted).
(B)
When a will that has been declared valid pursuant to division
(A)(1) of section
2107.084
5817.10
of
the Revised Code has
been admitted to probate by a probate court, and an authenticated
copy of another will of later date that was executed
and proved as required by law is presented to the same court
for record, the will of later date shall be admitted the same
as if no other will had been admitted and the proceedings shall
continue as provided in this section.
Sec. 2107.33. (A) A will shall be revoked in the following manners:
(1) By the testator by tearing, canceling, obliterating, or destroying it with the intention of revoking it;
(2) By some person, at the request of the testator and in the testator's presence, by tearing, canceling, obliterating, or destroying it with the intention of revoking it;
(3) By some person tearing, canceling, obliterating, or destroying it pursuant to the testator's express written direction;
(4) By some other written will or codicil, executed as prescribed by this chapter;
(5) By some other writing that is signed, attested, and subscribed in the manner provided by this chapter.
(B)
A
will that has been declared valid and is in the possession
of a probate judge also may be revoked according to division
(C) of section 2107.084 of the Revised Code.
(C)
If a testator removes a will that has been declared valid
and is in the possession of a probate judge pursuant to section
2107.084 of the Revised Code from the possession of the judge,
the declaration of validity that was rendered no longer has
any effect.
(D)
If
after executing a will, a testator is divorced, obtains
a dissolution of marriage, has the testator's marriage annulled,
or, upon actual separation from the testator's spouse, enters
into a separation agreement pursuant to which the parties intend
to fully and finally settle their prospective property rights
in the property of the other, whether by expected inheritance
or otherwise, any disposition or appointment of property
made by the will to the former spouse or to a trust with
powers created by or available to the former spouse, any provision
in the will conferring a general or special power of appointment
on the former spouse, and any nomination in the will of
the former spouse as executor, trustee, or guardian shall be revoked
unless the will expressly provides otherwise.
(E)
(C)
Property
prevented from passing to a former spouse or
to a trust with powers created by or available to the former spouse
because of revocation by this section shall pass as if the
former spouse failed to survive the decedent, and other provisions
conferring some power or office on the former spouse shall
be interpreted as if the spouse failed to survive the decedent.
If provisions are revoked solely by this section, they shall
be deemed to be revived by the testator's remarriage with the
former spouse or upon the termination of a separation agreement
executed by them.
(F)
(D)
A
bond, agreement, or covenant made by a testator, for
a valuable consideration, to convey property previously devised
or bequeathed in a will does not revoke the devise or bequest.
The property passes by the devise or bequest, subject to
the remedies on the bond, agreement, or covenant, for a specific
performance or otherwise, against the devisees or legatees,
that might be had by law against the heirs of the testator,
or the testator's next of kin, if the property had descended
to them.
(G)
(E)
A
testator's revocation of a will shall be valid only
if the testator, at the time of the revocation, has the same
capacity as the law requires for the execution of a will.
(H)
(F)
As
used in this section:
(1) "Trust with powers created by or available to the former spouse" means a trust that is revocable by the former spouse, with respect to which the former spouse has a power of withdrawal, or with respect to which the former spouse may take a distribution that is not subject to an ascertainable standard but does not mean a trust in which those powers of the former spouse are revoked by section 5815.31 of the Revised Code or similar provisions in the law of another state.
(2) "Ascertainable standard" means a standard that is related to a trust beneficiary's health, maintenance, support, or education.
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 that includes more than one generation, 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
March 22, 2012.
Sec.
2107.71.
(A) A person interested in a will or codicil admitted
to probate in the probate court that has not been declared
valid by judgment of a probate
court
pursuant to
division
(A)(1) of
section 2107.084
5817.10
of
the Revised Code or
that has been declared valid by judgment of a probate court pursuant
to section 2107.084 of the Revised Code but has been removed
from the possession of the probate judge, may
contest its
validity by filing a complaint in the probate court in the county
in which the will or codicil was admitted to probate.
(B)
Except as otherwise provided in this division, no person
may contest the validity of any will or codicil as to facts
decided if it was submitted to a probate court by the testator
during the testator's lifetime and declared valid by judgment
of the
probate a
court
and
filed with the judge of the probate
court pursuant
to division
(A)(1) of section
2107.084
5817.10
of
the Revised Code
and if the will was not removed from the
possession of the probate judge.
A person may contest the validity
of that will,
modification,
or codicil as to those facts
if the person is one who should have been named a party defendant
in the action in which the will,
modification,
or codicil
was declared valid, pursuant to division
(A) of section
2107.081
or 2107.084 5817.05
of
the Revised Code, and if the person
was not named a defendant and properly served in that action.
Upon the filing of a complaint contesting the validity of
a will or codicil that is authorized by this division, the court
shall proceed with the action
in the same manner as if the will,
modification, or codicil had not been previously declared valid
under sections 2107.081 to 2107.085 of the Revised Code.
(C)
No person may introduce, as evidence in an action authorized
by this section contesting the validity of a will, the
fact that the testator of the will did not file a complaint for
a judgment declaring its validity under section
2107.081 Chapter
5817. of
the Revised Code.
Sec. 2111.182. If a minor is entitled to money or property whether by settlement or judgment for personal injury or damage to tangible or intangible property, inheritance or otherwise, the probate court may order that all or a portion of the amount received by the minor be deposited into a trust for the benefit of that beneficiary until the beneficiary reaches twenty-five years of age, and order the distribution of the amount in accordance with the provisions of the trust. Prior to the appointment as a trustee of a trust created pursuant to this section, the person to be appointed shall be approved by a parent or guardian of the minor beneficiary of the trust, unless otherwise ordered by the probate court.
Sec. 2111.52. (A) The probate court may accept funds or other program assistance from, or charge fees for services described in division (C) of this section rendered to, individuals, corporations, agencies, or organizations, including a county board of alcohol, drug addiction, and mental health services or a county board of developmental disabilities. Any funds or fees received by the probate court under this division shall be paid into the county treasury and credited to a fund to be known as the county probate court guardianship services fund.
(B) The probate courts of two or more counties may accept funds for other program assistance from, or charge fees for services described in division (C) of this section rendered to, individuals, corporations, agencies, or organizations, including a county board of alcohol, drug addiction, and mental health services or a county board of developmental disabilities. Any funds or fees received by the probate courts of two or more counties under this division shall be paid into the county treasury of one or more of the counties and credited to a fund to be known as the multicounty probate court guardianship services fund.
(C) The moneys in a county or multicounty probate court guardianship services fund shall be used for services to help ensure the treatment of any person who is subject to a guardianship, whether or not that person is under the care of a county board of alcohol, drug addiction, and mental health services or a county board of developmental disabilities. These services include involuntary commitment proceedings and the establishment and management of adult guardianships, including all associated expenses, for wards who are under the care of a county board of alcohol, drug addiction, and mental health services, a county board of developmental disabilities, or any other guardianships.
(D) If a judge of a probate court determines that some of the moneys in the county or multicounty probate court guardianship services fund are needed for the efficient operation of the probate court, the moneys may be used for the acquisition of equipment, the hiring and training of staff, community services programs, volunteer guardianship training services, the employment of magistrates, and other related services.
(E) The moneys in the county or multicounty probate court guardianship services fund that may be used in part for the establishment and management of adult guardianships under division (C) of this section may be utilized to establish a county or multicounty guardianship services board.
(F)(1) A county or multicounty guardianship services board under division (E) of this section may be established by the appointment of the board. The judge of the probate court shall appoint at least one member. Other appointing entities may include a board of directors of the county board of developmental disabilities or a board of directors of the county board of alcohol, drug addiction, and mental health services. The appointing entities shall determine the size of the guardianship services board. The term of appointment of each member is four years. Initial appointments may be staggered for two, three, and four years, upon agreement of the appointing entities.
(2) The county or multicounty guardianship services board may appoint a director of the board. The board shall determine the compensation of the director based on the availability of funds contained in the county or multicounty probate court guardianship services fund.
(3) The county or multicounty guardianship services board may receive appointments from one or more county probate courts to serve as guardians of both the person and estate of a ward. The director or any designee of a county or multicounty guardianship services board may act on behalf of the board in relation to all guardianship matters.
(4) The director of a county or multicounty guardianship services board may hire employees subject to available funds in the county or multicounty probate court guardianship services fund.
(5) The county or multicounty guardianship services board may charge a reasonable fee for services provided to a ward. A probate judge shall approve any fees charged by the board under this division.
(6) The county or multicounty guardianship services board that is created under division (F)(1) of this section shall promulgate all rules and regulations necessary for the efficient operation of the board and its administration of guardianship services.
Sec. 2137.01. As used in this chapter:
(A) "Account" means an arrangement under a terms-of-service agreement in which a custodian carries, maintains, processes, receives, or stores a digital asset of the user or provides goods or services to the user.
(B) "Agent" means a person granted authority to act for a principal under a power of attorney, whether denominated as agent, attorney in fact, or otherwise.
(C) "Carries" means engages in the transmission of an electronic communication.
(D) "Catalogue of electronic communications" means information that identifies each person with which a user has had an electronic communication, the time and date of the communication, and the electronic address of the person.
(E) "Content of an electronic communication" means information concerning the substance or meaning of the communication that meets all of the following conditions:
(1) It has been sent or received by a user.
(2) It is in electronic storage by a custodian providing an electronic-communication service to the public or is carried or maintained by a custodian providing a remote-computing service to the public.
(3) It is not readily accessible to the public.
(F) "Court" means the probate court for all matters in which the court has exclusive jurisdiction under section 2101.24 of the Revised Code. "Court" also includes the probate court or the general division of the court of common pleas for matters in which such courts have concurrent jurisdiction under section 2101.24 of the Revised Code.
(G) "Custodian" means a person that carries, maintains, processes, receives, or stores a digital asset of a user.
(H) "Designated recipient" means a person chosen by a user using an online tool to administer digital assets of the user.
(I) "Digital asset" means an electronic record in which an individual has a right or interest. "Digital asset" does not include an underlying asset or liability unless the asset or liability is itself an electronic record.
(J) "Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
(K) "Electronic communication" has the same meaning as in 18 U.S.C. 2510(12), as amended.
(L) "Electronic-communication service" means a custodian that provides to a user the ability to send or receive an electronic communication.
(M) "Fiduciary" means an original, additional, or successor agent, guardian, personal representative, or trustee.
(N)(1) "Guardian" means any person, association, or corporation appointed by the probate court to have the care and management of the person, the estate, or the person and the estate of an incompetent or minor. When applicable, "guardian" includes, but is not limited to, a limited guardian, an interim guardian, a standby guardian, and an emergency guardian appointed pursuant to division (B) of section 2111.02 of the Revised Code. "Guardian" also includes both of the following:
(a) An agency under contract with the department of developmental disabilities for the provision of protective service under sections 5123.55 to 5123.59 of the Revised Code when appointed by the probate court to have the care and management of the person of an incompetent;
(b) A conservator appointed by the probate court in an order of conservatorship issued pursuant to section 2111.021 of the Revised Code.
(2) "Guardian" does not include a guardian under sections 5905.01 to 5905.19 of the Revised Code.
(O) "Information" means data, text, images, videos, sounds, codes, computer programs, software, databases, or the like.
(P) "Online tool" means an electronic service provided by a custodian that allows the user, in an agreement distinct from the terms-of-service agreement between the custodian and user, to provide directions for disclosure or nondisclosure of digital assets to a third person.
(Q) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government, governmental agency or instrumentality, public corporation, or any other legal or commercial entity.
(R) "Personal representative" means an executor, administrator, special administrator, or other person acting under the authority of the probate court to perform substantially the same function under the law of this state. "Personal representative" also includes a commissioner in a release of assets from administration under section 2113.03 of the Revised Code and an applicant for summary release from administration under section 2113.031 of the Revised Code.
(S) "Power of attorney" means a writing or other record that grants authority to an agent to act in the place of the principal.
(T) "Principal" means an individual who grants authority to an agent in a power of attorney.
(U) "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.
(V) "Remote-computing service" means a custodian that provides to a user computer-processing services or the storage of digital assets by means of an electronic communications system, as defined in 18 U.S.C. 2510(14), as amended.
(W) "Terms-of-service agreement" means an agreement that controls the relationship between a user and a custodian.
(X) "Trustee" means a fiduciary with legal title to property pursuant to an agreement or declaration that creates a beneficial interest in another. "Trustee" includes an original, additional, and successor trustee and a cotrustee.
(Y) "User" means a person that has an account with a custodian.
(Z) "Ward" means any person for whom a guardian is acting or for whom the probate court is acting pursuant to section 2111.50 of the Revised Code. "Ward" includes a person for whom a conservator has been appointed by the probate court in an order of conservatorship issued pursuant to section 2111.021 of the Revised Code.
(AA)
"Will" includes codicils to wills admitted to probate,
lost, spoliated, or destroyed wills, and instruments admitted
to probate under section
2107.081 Chapter
5817. of
the Revised
Code. "Will" does not include inter vivos trusts or other
instruments that have not been admitted to probate.
Sec. 2721.03. Subject to division (B) of section 2721.02 of the Revised Code, any person interested under a deed, will, written contract, or other writing constituting a contract or any person whose rights, status, or other legal relations are affected by a constitutional provision, statute, rule as defined in section 119.01 of the Revised Code, municipal ordinance, township resolution, contract, or franchise may have determined any question of construction or validity arising under the instrument, constitutional provision, statute, rule, ordinance, resolution, contract, or franchise and obtain a declaration of rights, status, or other legal relations under it.
The
testator of a will may have the validity of the will determined
at any time during the testator's lifetime pursuant to
sections
2107.081 to 2107.085 Chapter
5817. of
the Revised Code.
The settlor of a trust may have the validity of the trust determined
at any time during the settlor's lifetime pursuant to Chapter
5817. of the Revised Code.
Sec.
5802.03.
The
(A)
Except as otherwise provided in division
(B) of this section, the probate
division of the court of
common pleas 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
any action that involves an inter vivos trust.
(B) The probate division of the court of common pleas has exclusive jurisdiction to render declaratory judgments under Chapter 5817. of the Revised Code. However, the probate division of the court of common pleas may transfer a declaratory judgment proceeding under that chapter to the general division of the court of common pleas pursuant to division (A) of section 5817.04 of the Revised Code.
Sec. 5802.05. (A) A provision in the terms of a trust, excluding a testamentary trust, that requires the arbitration of disputes, other than disputes of the validity of all or a part of a trust instrument, between or among the beneficiaries and a fiduciary under the trust, or a combination of those persons or entities, is enforceable.
(B) Unless otherwise specified in the terms of the trust, a trust provision requiring arbitration as described in division (A) of this section shall be presumed to require binding arbitration under Chapter 2711. of the Revised Code.
Sec.
5806.04.
(A) Any
Subject
to division (E) of this section,
any of
the following actions pertaining to a revocable trust
that is made irrevocable by the death of the settlor of the
trust shall be commenced by the earlier of the date that is two
years after the date of the death of the settlor of the trust
or that is six months from the date on which the trustee sends
the person bringing the action a copy of the trust instrument
and a notice informing the person of the trust's existence,
of the trustee's name and address, and of the time allowed
under this division for commencing an action:
(1) An action to contest the validity of the trust;
(2) An action to contest the validity of any amendment to the trust that was made during the lifetime of the settlor of the trust;
(3) An action to contest the revocation of the trust during the lifetime of the settlor of the trust;
(4) An action to contest the validity of any transfer made to the trust during the lifetime of the settlor of the trust.
(B) Upon the death of the settlor of a revocable trust that was made irrevocable by the death of the settlor, the trustee, without liability, may proceed to distribute the trust property in accordance with the terms of the trust unless either of the following applies:
(1) The trustee has actual knowledge of a pending action to contest the validity of the trust, any amendment to the trust, the revocation of the trust, or any transfer made to the trust during the lifetime of the settlor of the trust.
(2) The trustee receives written notification from a potential contestant of a potential action to contest the validity of the trust, any amendment to the trust, the revocation of the trust, or any transfer made to the trust during the lifetime of the settlor of the trust, and the action is actually filed within ninety days after the written notification was given to the trustee.
(C) If a distribution of trust property is made pursuant to division (B) of this section, a beneficiary of the trust shall return any distribution to the extent that it exceeds the distribution to which the beneficiary is entitled if the trust, an amendment to the trust, or a transfer made to the trust later is determined to be invalid.
(D) This section applies only to revocable trusts that are made irrevocable by the death of the settlor of the trust if the grantor dies on or after July 23, 2002.
(E) Except as otherwise provided in this division, no person may contest the validity of any trust as to facts decided if the trust was submitted to a probate court by the settlor during the settlor's lifetime and declared valid by the judgment of a court pursuant to division (B)(1) of section 5817.10 of the Revised Code. A person may contest the validity of that trust as to those facts if the person is one who should have been named a party defendant in the action in which the trust was declared valid, pursuant to division (A) of section 5817.06 of the Revised Code, and if the person was not named a defendant and properly served in that action.
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 that includes more than one generation, 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
March 22,
2012.
This section does not apply to any trust that was irrevocable
before
the effective date of this section
March 22, 2012,
even if property was added to the trust on or after
that effective
date
March 22, 2012.
Sec. 5817.01. As used in this chapter:
(A)(1) "Beneficiary under a trust" means either of the following:
(a) Any person that has a present or future beneficial interest in a trust, whether vested or contingent;
(b) Any person that, in a capacity other than that of trustee, holds a power of appointment over trust property, but does not include the class of permitted appointees among whom the power holder may appoint.
(2) "Beneficiary under a trust" includes a charitable organization that is expressly designated in the terms of the trust to receive distributions, but does not include any charitable organization that is not expressly designated in the terms of the trust to receive distributions, but to whom the trustee may in its discretion make distributions.
(B)(1) "Beneficiary under a will" means either of the following:
(a) Any person designated in a will to receive a testamentary disposition of real or personal property;
(b) Any person that, in a capacity other than that of executor, holds a power of appointment over estate assets, but does not include the class of permitted appointees among whom the power holder may appoint.
(2) "Beneficiary under a will" includes a charitable organization that is expressly designated in the terms of the will to receive testamentary distributions, but does not include any charitable organization that is not expressly designated in the terms of the will to receive distributions, but to whom the executor may in its discretion make distributions.
(C) "Court" means the probate court of the county in which the complaint under section 5817.02 or 5817.03 of the Revised Code is filed or the general division of the court of common pleas to which the probate court transfers the proceeding under division (A) of section 5817.04 of the Revised Code.
(D) "Related trust" means a trust for which both of the following apply:
(1) The testator is the settlor of the trust.
(2) The trust is named as a beneficiary in the will in accordance with section 2107.63 of the Revised Code.
(E) "Related will" means a will for which both of the following apply:
(1) The testator is the settlor of a trust.
(2) The will names the trust as a beneficiary in accordance with section 2107.63 of the Revised Code.
(F) "Trust" means an inter vivos revocable or irrevocable trust instrument to which, at the time the complaint for declaration of validity is filed under section 5817.03 of the Revised Code, either of the following applies:
(1) The settlor resides in, or is domiciled in, this state.
(2) The trust's principal place of administration is in this state.
Sec. 5817.02. (A) A testator may file a complaint with the probate court to determine before the testator's death that the testator's will is a valid will subject only to subsequent revocation or modification of the will. The right to file a complaint for a determination of the validity of a testator's will under this chapter, or to voluntarily dismiss a complaint once filed, is personal to the testator and may not be exercised by the testator's guardian or an agent under the testator's power of attorney.
(B) A testator who desires to obtain a validity determination as to the testator's will shall file a complaint to determine the validity of both the will and any related trust.
(C) The failure of a testator to file a complaint for a judgment declaring the validity of a will shall not be construed as evidence or an admission that the will is not valid.
(D) A complaint for a determination of the validity of a testator's will shall be accompanied by an express written waiver of the testator's physician-patient privilege provided in division (B) of section 2317.02 of the Revised Code.
Sec. 5817.03. (A) A settlor may file a complaint with the probate court to determine before the settlor's death that the settlor's trust is valid and enforceable under its terms, subject only to a subsequent revocation or modification of the trust. The right to file a complaint for a determination of the validity of a settlor's trust under this chapter, or to voluntarily dismiss a complaint once filed, is personal to the settlor and may not be exercised by the settlor's guardian or an agent under the settlor's power of attorney.
(B) A settlor who desires to obtain a validity determination as to the settlor's trust shall file a complaint to determine the validity of both the trust and the related will.
(C) The failure of a settlor to file a complaint for a judgment declaring the validity of a trust shall not be construed as evidence or an admission that the trust is not valid.
(D) A complaint for a determination of the validity of a settlor's trust shall be accompanied by an express written waiver of the settlor's physician-patient privilege provided in division (B) of section 2317.02 of the Revised Code.
Sec. 5817.04. (A) A complaint to determine the validity of a will or a trust shall be filed with the probate court. The probate judge, upon the motion of a party or the judge's own motion, may transfer the proceeding to the general division of the court of common pleas.
(B) The venue for a complaint under section 5817.02 of the Revised Code is either of the following:
(1) The probate court of the county in this state where the testator is domiciled;
(2) If the testator is not domiciled in this state, the probate court of any county in this state where any real property or personal property of the testator is located or, if there is no such property, the probate court of any county in this state.
(C) The venue for a complaint under section 5817.03 of the Revised Code is either of the following:
(1) The probate court of the county in this state where the settlor resides or is domiciled;
(2) If the settlor does not reside or is not domiciled in this state, the probate court of the county in this state in which the trust's principal place of administration is located.
Sec. 5817.05. (A) A complaint under section 5817.02 of the Revised Code shall name as party defendants all of the following, as applicable:
(1) The testator's spouse;
(2) The testator's children;
(3) The testator's heirs who would take property pursuant to section 2105.06 of the Revised Code had the testator died intestate at the time the complaint is filed;
(4) The testator's beneficiaries under the will;
(5) Any beneficiary under the testator's most recent prior will.
(B) A complaint under section 5817.02 of the Revised Code may name as a party defendant any other person that the testator believes may have a pecuniary interest in the determination of the validity of the testator's will.
(C) A complaint under section 5817.02 of the Revised Code may contain all or any of the following:
(1) A statement that a copy of the will has been filed with the court;
(2) A statement that the will is in writing;
(3) A statement that the will was signed by the testator, or was signed in the testator's name by another person in the testator's conscious presence and at the testator's express direction;
(4) A statement that the will was signed in the conscious presence of the testator by two or more competent individuals, each of whom either witnessed the testator sign the will, or heard the testator acknowledge signing the will;
(5) A statement that the will was executed with the testator's testamentary intent;
(6) A statement that the testator had testamentary capacity;
(7) A statement that the testator executed the will free from undue influence, not under restraint or duress, and in the exercise of the testator's free will;
(8) A statement that the execution of the will was not the result of fraud or mistake;
(9) The names and addresses of the testator and all of the defendants and, if any of the defendants are minors, their ages;
(10) A statement that the will has not been revoked or modified;
(11) A statement that the testator is familiar with the contents of the will.
Sec. 5817.06. (A) A complaint under section 5817.03 of the Revised Code shall name as party defendants the following, as applicable:
(1) The settlor's spouse;
(2) The settlor's children;
(3) The settlor's heirs who would take property pursuant to section 2105.06 of the Revised Code had the settlor died intestate at the time the complaint is filed;
(4) The trustee or trustees under the trust;
(5) The beneficiaries under the trust;
(6) If the trust amends, amends and restates, or replaces a prior trust, any beneficiary under the settlor's most recent prior trust.
(B) A complaint under section 5817.03 of the Revised Code may name as a party defendant any other person that the settlor believes may have a pecuniary interest in the determination of the validity of the settlor's trust.
(C) A complaint under section 5817.03 of the Revised Code may contain all or any of the following:
(1) A statement that a copy of the trust has been filed with the court;
(2) A statement that the trust is in writing and was signed by the settlor;
(3) A statement that the trust was executed with the intent to create a trust;
(4) A statement that the settlor had the legal capacity to enter into and establish the trust;
(5) A statement that the trust has a definite beneficiary or is one of the following:
(a) A charitable trust;
(b) A trust for the care of an animal as provided in section 5804.08 of the Revised Code;
(c) A trust for a noncharitable purpose as provided in section 5804.09 of the Revised Code.
(6) A statement that the trustee of the trust has duties to perform;
(7) A statement that the same person is not the sole trustee and sole beneficiary of the trust;
(8) A statement that the settlor executed the trust free from undue influence, not under restraint or duress, and in the exercise of the settlor's free will;
(9) A statement that execution of the trust was not the result of fraud or mistake;
(10) The names and addresses of the settlor and all of the defendants and, if any of the defendants are minors, their ages;
(11) A statement that the trust has not been revoked or modified;
(12) A statement that the settlor is familiar with the contents of the trust.
Sec. 5817.07. (A) Service of process, with a copy of the complaint and the will, and a copy of the related trust, if applicable, shall be made on every party defendant named in the complaint filed under section 5817.02 of the Revised Code, as provided in the applicable Rules of Civil Procedure.
(B) Service of process, with a copy of the complaint and the trust, and a copy of the related will, if applicable, shall be made on every party defendant named in the complaint filed under section 5817.03 of the Revised Code, as provided in the applicable Rules of Civil Procedure.
Sec. 5817.08. (A) After a complaint is filed under section 5817.02 or 5817.03 of the Revised Code, the court shall fix a time and place for a hearing.
(B) Notice of the hearing shall be given to the testator or settlor, as applicable, and to all party defendants, as provided in the applicable Rules of Civil Procedure.
(C) The hearing shall be adversarial in nature and shall be conducted pursuant to sections 2101.31 and 2721.10 of the Revised Code, except as otherwise provided in this chapter.
Sec. 5817.09. (A) The testator or settlor has the burden of establishing prima facie proof of the execution of the will or trust, as applicable. A person who opposes the complaint has the burden of establishing one or more of the following:
(1) The lack of testamentary intent or the intent to create a trust, as the case may be;
(2) The lack of the testator's testamentary capacity, or the settlor's legal capacity to enter into and establish the trust;
(3) Undue influence, restraint, or duress on the testator or settlor;
(4) Fraud or mistake in the execution of the will or trust;
(5) Revocation of the will or trust.
(B) A party to the proceeding has the ultimate burden of persuasion as to the matters for which the party has the initial burden of proof.
Sec. 5817.10. (A)(1) The court shall declare the will valid if it finds all of the following:
(a) The will was properly executed pursuant to section 2107.03 of the Revised Code or under any prior law of this state that was in effect at the time of execution.
(b) The testator had the requisite testamentary capacity, was free from undue influence, and was not under restraint or duress.
(c) The execution of the will was not the result of fraud or mistake.
(2) After the testator's death, unless the will is modified or revoked after the court's declaration under division (A)(1) of this section, the will has full legal effect as the instrument of the disposition of the testator's estate and shall be admitted to probate upon request.
(B)(1) The court shall declare the trust valid if it finds all of the following:
(a) The trust meets the requirements of section 5804.02 of the Revised Code.
(b) The settlor had the legal capacity to enter into and establish the trust, was free from undue influence, and was not under restraint or duress.
(c) The execution of the trust was not the result of fraud or mistake.
(2) Unless the trust is modified or revoked after the court's declaration, the trust has full legal effect.
(C) The court may, if it finds the will or trust to be valid, attach a copy of the valid document to the court's judgment entry, but failure to do so shall not affect the determination of validity of the will or trust.
Sec. 5817.11. (A) Unless the will or trust is modified or revoked, and except as otherwise provided in this section, no person may contest the validity of a will or trust that is declared valid in a proceeding pursuant to this chapter.
(B) The failure to name a necessary defendant under division (A) of section 5817.05 of the Revised Code is not jurisdictional. A declaration of a will's validity under this chapter shall be binding upon all defendants who were named or represented, and properly served pursuant to division (A) of section 5817.07 of the Revised Code, notwithstanding the failure to name a necessary defendant. However, if a person is one who should have been named a party defendant in the action in which the will was declared valid and if the person was not named a defendant and properly served in that action, that person, after the testator's death, may contest the validity of a will declared valid.
(C) The failure to name a necessary defendant under division (A) of section 5817.06 of the Revised Code is not jurisdictional. A declaration of a trust's validity under this chapter shall be binding upon all defendants who were named or represented, and properly served pursuant to division (B) of section 5817.07 of the Revised Code, notwithstanding the failure to name a necessary defendant. However, if a person is one who should have been named a party defendant in the action in which the trust was declared valid and if the person was not named a defendant and properly served in that action, that person may contest the validity of a trust declared valid.
(D) In determining whether a person was a party defendant and properly served in an action to declare a will or trust valid under this chapter, the representation rules of Chapter 5803. of the Revised Code shall be applied, and a person represented in the action under those rules is bound by the declaration of validity even if, by the time of the testator's death, or the challenge to the trust, the representing person has died or would no longer be able to represent the person to be represented in the proceeding under this chapter.
Sec. 5817.12. (A) After a declaration of a will's validity under division (A)(1) of section 5817.10 of the Revised Code, the will may be modified by a later will or codicil executed according to the laws of this state or another state, and the will may be revoked under section 2107.33 of the Revised Code or other applicable law.
(B) The revocation by a later will, or other document under section 2107.33 of the Revised Code, of a will that has been declared valid under division (A)(1) of section 5817.10 of the Revised Code does not affect the will or the prior declaration of its validity if the later will or other document is found by a court of competent jurisdiction to be invalid due to the testator's lack of testamentary capacity, or undue influence, restraint, or duress on the testator, or otherwise.
(C) The amendment by a later codicil of a will that has been declared valid under division (A)(1) of section 5817.10 of the Revised Code does not affect the will or the prior declaration of its validity except as provided by the codicil. However, the codicil is not considered validated under this chapter unless its validity is also declared as provided in this chapter.
Sec. 5817.13. (A) After a declaration of a trust's validity under division (B)(1) of section 5817.10 of the Revised Code, the trust may be modified, terminated, revoked, or reformed under sections 5804.10 to 5804.16 of the Revised Code, or other applicable law.
(B) The modification, termination, revocation, or reformation by a new trust or other document of a trust that has been declared valid under division (B)(1) of section 5817.10 of the Revised Code does not affect the trust or the prior declaration of its validity if the later trust or other document is found by a court of competent jurisdiction to be invalid due to the settlor's lack of capacity, or undue influence, restraint, or duress on the settlor, or otherwise.
(C) An amendment of a trust that has been declared valid under division (B)(1) of section 5817.10 of the Revised Code does not affect the trust or the prior declaration of its validity except as provided by the amendment. However, the amendment is not considered validated under this chapter unless its validity is also declared as provided in this chapter.
Sec. 5817.14. (A) The finding of facts by a court in a proceeding brought under this chapter is not admissible as evidence in any proceeding other than a proceeding brought to determine the validity of a will or trust.
(B) The determination or judgment rendered in a proceeding under this chapter is not binding upon the parties to that proceeding in any action that is not brought to determine the validity of a will or trust.
(C) The failure of a testator to file a complaint for a judgment declaring the validity of a will that the testator has executed is not admissible as evidence in any proceeding to determine the validity of that will or any other will executed by the testator.
(D) The failure of a settlor to file a complaint for a judgment declaring the validity of a trust that the settlor has executed is not admissible as evidence in any proceeding to determine the validity of that trust or any other trust executed by the settlor.
Section 2. That existing sections 313.14, 2101.24, 2107.01, 2107.05, 2107.07, 2107.08, 2107.09, 2107.10, 2107.11, 2107.12, 2107.16, 2107.18, 2107.20, 2107.22, 2107.33, 2107.52, 2107.71, 2137.01, 2721.03, 5802.03, 5806.04, and 5808.19 and sections 2107.081, 2107.082, 2107.083, 2107.084, and 2107.085 of the Revised Code are hereby repealed.
Section 3. This act's amendment of section 2107.05 of the Revised Code is intended to abrogate the holdings of the Ohio Supreme Court in Hageman v. Cleveland Trust Company, 45 Ohio St.2d 178 (1976) and the Ohio Second District Court of Appeals in Gehrke v. Senkiw, 2016 Ohio 2657 (2016).
Section 4. Section 2101.24 of the Revised Code is presented in this act as a composite of the section as amended by both Sub. S.B. 23 of the 130th General Assembly and Sub. H.B. 158 of the 131st 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.