PROBATE JOURNAL OF OHIO

JANUARY/FEBRUARY 2021  VOLUME 31  ISSUE 3 IN THIS ISSUE: Editor’s Message 109 EDITOR’S MESSAGE Legislative Report 109 Robert M. Brucken, Esq. This issue of Law Journal is devoted entirely Modernization Of Ohio LLC Law 111 to work product of the 133rd General Assembly. Its term By William R. Graf, Esq. Special Delivery: Ohio’s Business has now expired, and its must still be signed Benefit Corporation Has Arrived 114 by the Governor and will not become effective until later By Lee M. Stautberg, Esq. and Melissa Spievack, Esq. this spring. Immediately following this message is a Expanded “ Planning” For A Ward By A Guardian (Effective Date Legislative Report that is a tabulation of the output of TBD) 117 trust and estate legislation, bills that made it and bills By Nirakar “Nic” Thakur Esq. that failed, either on their merits or for lack of legisla- Amended Ohio Revised Code § 2106.13: Reduction In Allowance tive time. Following that are articles identifying and For Support Applies Only If Multiple Vehicles Selected By explaining the contents of each of the bills that survived, Surviving Spouse 118 or almost survived and will be reintroduced in the new By James J. Lanham Esq. Going Bare, Or Not: The Repeal Of General Assembly, most of them in the “first person,” R.C. 5805.06(B)(2) 120 that is, authored by the person who identified the By Richard E. Davis, Esq. Stephanie A. Lehota, Esq. problem involved, wrote the statutory solution and Trustee Removal Is More Clearly Limited To Currently authored the definitive Probate Law Journal article on Serving Trustees 123 it; and who then shepherded the solution through the By Robert M. Brucken, Esq. EPTPL Section, OSBA Council of Delegates and finally HB 464—Technical Corrections To The Ohio Legacy Trust Act—ORC the General Assembly. Please remember to thank them 5816.01 ET SEQ. 124 for their efforts, made on your behalf for the improve- By D. Bowen (“Bo”) Loeffler, Esq. Proposed Updates To Ohio Name ment of Ohio trust and estate law. Change Law 126 Hon. Thomas M. O’Diam Additional Proposals Of Sub. H.B. LEGISLATIVE REPORT 464 Still Awaiting Enactment 127 By John F. Furniss III, Esq. Robert M. Brucken, Esq. Case Summaries 130 Subject Index 135 Editor-in-Chief, Probate Law Journal of Ohio Legislative Scorecard 139 Cleveland, Ohio The past legislative biennium is completed, the legisla- tors have gone home, and a new General Assembly will represent us in the new biennium. With the end of the

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2019-2020 session there is both good and Second, the “did nots.” HB 464, the bad news. Some trust and estate legisla- OSBA-sponsored trust and estate omnibus tion that we follow made it, some did not. bill, failed of final enactment. Its failure makes a good story, so here it is. The bill First, the “dids.” Enacted were SB 21, was late in introduction, not until the authorizing benefit corporations, and SB second year of the session. The sponsor 276, an OSBA bill updating the LLC law. was Rep. Cupp, a who has also Explanations of each of these new fol- sponsored prior OSBA bills. You know low in this issue. We are rushing this in- what came next. The Speaker of the House formation to our readers now, even before was indicted, and Rep. Cupp became the the Governor has signed the bills, as he new Speaker and had more on his plate will have no reason to veto them. Their ef- than just our bill. The bill did not receive fective dates will be this spring, March or attention until the lame duck session in April dates that are 90 days from when November, when it finally moved through they are signed and filed with the Secre- its House committee and the floor, teeing tary of State. it up for the Senate. It cleared the Senate committee in the closing days of the lame duck session, and then went to the Senate K2021 Thomson Reuters. All rights reserved. floor on the last day of the session. It PROBATE LAW JOURNAL OF OHIO (ISSN 1050-5342) is a passed the Senate unanimously, as it had journal on probate law and practice in Ohio, edited by Robert M. Brucken, Retired Partner, Baker & Hostetler, Key Tower, 127 Pub- passed in the House. lic Square, Suite 2000, Cleveland, Ohio 44114. It is issued 6 times per year from September 1 through August 31; published and Now it gets tricky. The original bill copyrighted by Thomson Reuters, 610 Opperman Drive, P.O. Box 64526, St. Paul, MN 55164-0526. POSTMASTER: send address contained only four rather simple OSBA changes to PROBATE LAW JOURNAL OF OHIO, 610 Opper- man Drive, P.O. Box 64526, St. Paul, MN 55164-0526. proposals. It was expected to be amended Opinions expressed are those of the authors or advertisers and not with seven more important OSBA propos- necessarily those of the Publisher or Robert M. Brucken, Editor-in- als, that had first to be approved by the Chief. Correspondence should be addressed to the Editor-in-Chief. No part of this publication may be reproduced or transmitted in OSBA Council of Delegates in April. You any form or by any means, electronic or mechanical, including know what happened next. The virus came photocopying, recording, or by any information storage and retrieval system, without prior permission in writing from the upon us, the April OSBA meeting was Publisher. cancelled, and approval (of all seven) Subscription inquiries: 1-800-328-9352. finally came only by a virtual meeting in This publication was created to provide you with accurate and au- thoritative information concerning the subject matter covered; July. We were advised that it was then too however, this publication was not necessarily prepared by persons late to add the new proposals in the House licensed to practice law in a particular . The publisher is not engaged in rendering legal or other professional advice and or Senate. Meanwhile, the and oth- this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the ser- ers had slipped into the bill in the Senate vices of a competent attorney or other professional. about a dozen of their own wish list items. For authorization to photocopy, please contact the Copyright That meant that after the bill cleared the Clearance Center at 222 Rosewood Drive, Danvers, MA 01923, USA (978) 750-8400, http://www.copyright.com or West’s Copy- Senate, it had to return to the House for right Services at 610 Opperman Drive, Eagan, MN 55123, copyri concurrence in those Senate amendments, [email protected]. Please outline the specific mate- rial involved, the number of copies you wish to distribute and the usually a formality. purpose or format of the use. The bill cleared the Senate on the last day of its session, but was somehow de-

110 K 2021 Thomson Reuters PROBATE LAW JOURNAL OF OHIO JANUARY/FEBRUARY 2021 | VOLUME 31 | ISSUE 3 layed in its immediate return to the House EPTPL Section Council (also in its last day) for concurrence. It did Member, PLJO Editorial Advisory Board not arrive there until after the House had adjourned. Too late! So it has not (yet) been INTRODUCTION enacted. A complete restatement of the Ohio LLC Act, which was enacted about 25 years ago, This is not a serious problem for the has been in the works for a while and was state. The leadership promises to give the finally approved by both the Senate and failed bill early attention in the new the Ohio House of Representatives on . However, it is a problem for December 18, 2020. The new version is Probate Law Journal. This Jan/Feb 2021 based upon the “Revised Prototype Limited issue was to be dedicated entirely to the Liability Company Act” prepared by the new legislation, on the assumption there ABA Committee of LLCs, Partnerships, would be a ton of it. Well, there was some, and Unincorporated Entities (“Prototype”). and there should be more done early in the new session. So that’s what we are publish- The new Act was sponsored by Senators ing on in this issue, not only what has al- Roegner and Manning, with considerable ready been enacted but also what is ex- participation by the OSBA Corporation pected for enactment early in the new Law Committee, chaired by Mike Moeddel session. from Cincinnati. Other OSBA committees have been consulted, including the Busi- Two other failed bills that would have ness Entities Committee of the EPTPL been helpful to trust and estate practitio- Section; the asset protection experts on ners may also return in the new legislative that Committee have made important session. HB 270 included a simplified pro- contributions. The new Ohio Revised Lim- cedure for claiming unclaimed funds for a ited Liability Company Act (“New LLC closed estate, and HB 209 would have re- Act”) will become effective on January 1, pealed dower. Two failed bills that were 2022;1 and the currently existing LLC Act more problematic were HB 449, extending (R.C. 1705.01 to 1705.61) will be repealed the real estate transfer fee to transfer of 2 interests in certain LLCs and other pass- effective January 1, 2022. throughs owning real estate, and HB 692, The initial plan that both versions of the providing for remote witnessing of elec- law would exist together, with the old law tronic wills. Explanations of each of these applying to existing LLCs and the new law proposals are contained in prior issues of applying to new LLCs, was abandoned dur- Probate Law Journal and are also cited in ing the legislative process, and only the the Legislative Scorecard. New LLC Act will apply on and after Janu- ary 1, 2022. MODERNIZATION OF OHIO LLC LAW OPERATING AGREEMENT By William R. Graf, Esq. E An operating agreement may be en- Graf Coyne Co., LPA—Cincinnati tered into before, at the time of, or af- Chair, Business Entities Committee, ter filing the articles of organization.3

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E No person can bind the LLC or a ability of one building cannot be satis- series of the LLC unless authorized fied by other buildings owned by other as agent in the operating agreement, LLCs. or under Sections 1706.19 or 1706.30, E With a series LLC, the separate divi- or to the extent provided by law other sions are established in the Operating than Chapter 1706.4 Agreement, and there is no need for a E 1706.19 allows an LLC or a series of subsidiary LLC. the LLC to file a form with the Secre- E A series may carry on any activity, tary of State stating the authority of whether or not for profit.11 a specific person or with respect to persons holding a particular position.5 E Any series must keep separate records.12 SERIES ASSETS E The LLC operating agreement must E The New LLC Act permits the estab- include a statement of the separate li- lishment of a “series of assets.”6 The ability for the series.13 series can act in its own name and can E The articles filed with the Secretary sue or be sued; can , hold and of State must specifically allow one or convey title; and can grant liens and more series of assets subject to the security interests in assets of the provisions of Sec. 1706.761.14 series.7 E If the requirements for establishment E The operating agreement may provide of one or more series are met, the li- for one or more “series of assets” with abilities of the series will be enforce- separate rights, powers, or duties for able only against the assets of that specified property or a separate pur- series and will not be enforceable pose or investment objective.8 At least against the LLC or another series; one LLC member must be associated and none of the liabilities of the LLC 9 with each series. or another series will be enforceable 15 E The debts, liabilities, obligations, and against the assets of the series. expenses with respect to a series E Assets of a series may be held in the “shall be enforceable against the as- name of the series, in the name of the sets of that series only”; and none of LLC, through a nominee, or the liabilities of the LLC generally or 16 otherwise. of any other series shall be enforce- 10 able against that series. SELECTED PROVISIONS E It is very much like having a parent E An LLC may carry on any lawful LLC with a number of subsidiaries, activity, “whether or not for profit.”17 each holding a separate asset. This structure is well known in the rental E The New LLC Act confirms that it real estate business, so that the li- “shall be construed to give maximum

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effect to the principles of freedom of grounds for imposing liabilities of the contract and to the enforceability of LLC upon the members.26 operating agreements.”18 This is an E LLCs will be under the direction of its important provision for people who members.27 want to define the rights, duties, and responsibilities that will apply in a E A “series” of an LLC will be under the business venture without having state direction of the members associated law override their agreement with with the series.28 And the other mem- non-waivable duties. bers will not be involved.29

E The New LLC Act also confirms that E A member does not violate any duty duties, including fiduciary duties, may under the New LLC Act just because be “expanded, or restricted, or elimi- the member’s conduct furthers the nated by a written operating member’s own interest.30 agreement.”19 E The New LLC Act does not distinguish E But, an operating agreement cannot between Member Managed LLCs and eliminate the “implied covenant of Manager Managed LLCs. All LLCs good faith and fair dealing.”20 are under the direction of its members.31 E And, while an operating agreement includes oral agreements;21 the provi- E But, the members may designate one sions of the New LLC Act that allow or more managers to supervise or 32 waiver of duties require that those manage the affairs of the LLC. waivers be in a written operating E The New LLC Act clearly states that 22 agreement. the sole remedy of an LLC E A promise by a member to contribute creditor is a charging order; that the to an LLC, or a series of the LLC, is creditor has no right to foreclose; and not enforceable unless in writing and that the creditor cannot obtain pos- signed by that member.23 session of the debtor’s membership interest or the LLC’s property.33 E Rules that in derogation of must be strictly con- CLOSING THOUGHTS strued have no application to the New E LLC Act.24 There is much more in the New LLC Act than can be covered here. Fortu- E But, unless provided otherwise in the nately, we all have another year to New LLC Act, “principles of law and learn and absorb the new provisions. ” supplement new chapter E The Corporation Law Committee 1706.25 plans to prepare sample documents E The failure of an LLC or its members for OSBA members, and there will be to observe formalities relating to LLC more articles and seminars. The read- powers or management will not be ability of the New LLC Act is im-

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proved, and the “modern” language is 31Sec. 1706.08 to 1706.082. easier to read. The Legislative Service 32Sec. 1706.31(A). Commission has prepared a summary 33Sec. 1706.342(F). which is available on the Ohio Legis- 34 https://www.legislature.ohio.gov. lature website along with a copy of the bill (go to legislature.ohio.gov, 133rd SPECIAL DELIVERY: OHIO’S G.A., and search for SB 276).34 BUSINESS BENEFIT CORPORATION HAS ENDNOTES: ARRIVED 1Am. Sub. S.B. No. 276 (the “Bill”); Sec. 1706.83. By Lee M. Stautberg, Esq. and Melissa Spievack, Esq. 2Bill, Sections 3 and 4. 3 Dinsmore & Shohl LLP Sec. 1706.16(D). Cincinnati,Ohio 4Sec. 1706.18. Ms. Stautberg is a member of the PLJO 5Sec. 1706.19. Editorial Advisory Board 6Sec. 1706.76. In the May/June 2020 edition of the 7Sec. 1706.05(D). Probate Law Journal of Ohio, we reported 8Sec. 1706.76(A)(1). that Ohio Senate Bill number 21 propos- ing to amend Ohio’s corporate statutes to 9Sec. 1706.76(A)(2). allow the Articles of Incorporation of Ohio 10Sec. 1706.761(A)(1) and (2). corporations to have one or more beneficial 11Sec. 1706.76(B). purposes had just been voted out of the 12Sec. 1706.761(B)(1). Ohio Senate.1 Soon, Governor DeWine will 13Sec. 1706.761(B)(2). sign Ohio Senate Bill 21 into law, amend- 14 Sec. 1706.761(B)(3). ing Ohio Revised Code (“R.C.”) Chapter 15 Sec. 1706.762(B); Sec. 1706.761(B). 1701 to allow for the articles of an Ohio 16 Sec. 1706.762(A). corporation to provide for one or more ben- 17Sec. 1706.05(A). eficial purposes among the purposes for 18Sec. 1706.06(A). which a corporation can be formed. 19Sec. 1706.08(B)(1). The new law is largely as we previously 20Sec. 1706.08(B)(1). reported. In summary, the new statutory 21Sec. 1706.01(r). provisions define a “Benefit corporation” to 22Sec. 1706.08(B)(1) and (2). mean “a corporation that sets forth in its 23 Sec. 1706.281(A). articles of incorporation one or more bene- 24 Sec. 1706.06(c). ficial purposes among the purposes for 25 Sec. 1706.06(B). which the corporation is formed.”2 R.C. 26 Sec. 1706.26. 1701.03(A)(2) permits the purposes for 27Sec. 1706.30. which a corporation is formed to include a 28Sec. 1706.30(A)(2). beneficial purpose. The statutory language 29Sec. 1706.30(A)(3). defines “beneficial purpose” as “seeking to 30Sec. 1706.31(F). have a bona fide positive effect or to reduce

114 K 2021 Thomson Reuters PROBATE LAW JOURNAL OF OHIO JANUARY/FEBRUARY 2021 | VOLUME 31 | ISSUE 3 one or more bona fide negative effects of members of a national or affiliated securi- an artistic, charitable, cultural, economic, ties association(b) the initial articles of the educational, environmental, literary, medi- corporation did not include a beneficial cal, religious, scientific, or technological purpose.8 In addition, the new law permits nature for the benefit of persons, entities, a corporation to prioritize its purposes. communities, or interests other than share- Specifically, the articles may set forth “any holders in their capacity as shareholders.”3 priority or other method for balancing the Except as otherwise provided by the ar- purposes for which the corporation is 9 ticles of the corporation, inclusion of a ben- formed.” eficial purpose in the corporation’s stated Unless a corporation is already using the purposes does not prevent such corpora- words “benefit” or “b-” prior to the effective tion from seeking any other purposes for date of the new statutory provisions, only which the corporation is formed, including a benefit corporation satisfying the require- operation of the corporation for pecuniary ments of the new statutory provisions gain or profit and distribution of net earn- would be permitted to use the word “bene- ings, and no particular purpose of a corpo- fit” or “b-” in its name as prefix to “com- ration would have priority over any other pany,” “co.,” “corporation,” “corp.,” “incorpo- purpose of the corporation.4 The new statu- rated,” or “inc.”10 tory provisions clarify that corporations The newly enacted amendments to R.C. that are not benefit corporations, and 1701 provide that at the annual share- therefore do not have a “beneficial pur- pose,” are not required to operate exclu- holder meeting (or at any meeting in lieu sively for profit or distribution of net earn- thereof) a benefit corporation is required to provide to its shareholders “any written ings of the corporation in all instances.5 statement or report required by the ar- In order to be effective, the articles must ticles, , or a written agreement expressly provide for a beneficial purpose.6 of the benefit corporation concerning the The proposed statutory language states beneficial purposes of the benefit corpora- that “[a] statement of purpose in the tion and the activities of the benefit corpo- articles that includes any purpose or com- ration toward those beneficial purposes bination of purposes for which individuals and related provisions set forth in the lawfully may associate themselves, with- corporation’s articles.”11 In addition, upon out the express provision of a beneficial shareholder request, the benefit corpora- purpose, does not establish a beneficial tion would be required to send such writ- purpose as a purpose of the corporation.”7 ten statements and reports to the request- ing shareholder.12 The failure to provide The new statutory provisions provide such written statements or reports exposes that an Ohio corporation may not amend the benefit corporation to a monetary its articles to include a beneficial purpose penalty of 10 dollars per day per share- if: (a) the corporation has issued and has holder making the request for any such outstanding shares listed on a national se- written statements or reports.13 curities exchange or regularly quoted in an over-the-counter market by one or more Notably, an Ohio benefit corporation does

K 2021 Thomson Reuters 115 JANUARY/FEBRUARY 2021 | VOLUME 31 | ISSUE 3 PROBATE LAW JOURNAL OF OHIO not owe a duty to a beneficiary of the ben- statutes.18 In addition to business benefit eficial purpose of the benefit corporation corporations, some states have enacted (based solely on the status of that person legislation allowing for “stewardship 14 being a beneficiary). If a benefit corpora- trusts.”19 Oregon recently adopted Or. Rev. tion fails to seek, achieve, or comply with Stat. Ann. § 130.193 which allows for a a beneficial purpose, the benefit corpora- stewardship trust to be formed for a busi- 15 tion is not liable for damages. ness purpose without a definite or defi- The revisions to R.C. Chapter 1701 also nitely ascertainable beneficiary. Under set forth some safeguards and standards Oregon’s stewardship trust , the for directors of benefit corporations. The business purpose may seek economic and statutory language specifically states that noneconomic benefits and may hold an a director does not have a duty to a person ownership interest of a corporation, part- who is a beneficiary of a beneficial purpose nership, limited partnership, cooperative, of a benefit corporation based solely on the limited liability company, limited liability status of that person being a beneficiary.16 partnership or joint venture.20 An explor- atory committee of the Estate Planning However, the statutory language does Probate and section is investi- provide a means to bring an action to gating whether the current business bene- require a benefit corporation to comply fit corporation and Ohio’s trust code is suf- with a beneficial purpose set forth in its ficient for facilitating the ongoing articles. Such action may be brought only management of a business’ purposes (as by the benefit corporation or in a deriva- well as its profits), or whether there is tive action on behalf of the benefit corpora- value for Ohio to adopt this new type of tion by any of the following: (1) a director special purpose trust. If you have any com- of the corporation; (2) persons who, in the ments regarding whether Stewardship aggregate, hold 25% of all shares outstand- Trusts would be beneficial to Ohio, please ing and entitled to vote at a meeting of contact Lee M. Stautberg at Lee.Stautberg shareholders, or a lesser percentage if the @Dinsmore.com. articles or regulations prescribe a lesser percentage; (3) if the benefit corporation is publicly traded, persons who, in the aggre- ENDNOTES: gate, own shares of at least $2 million of 1Lee M. Stautberg and Melissa Spie- market value; and (4) any other person vack, More than the Money: Ohio’s Pro- that the articles or regulations authorize posed Business Benefit Corporation, 30 17 Ohio Prob. L.J. 211, 30 No. 5 Ohio Prob. to bring such an action. Notably absent L.J. NL 8 (May/June 2020). from the statute is any authorization for 2R.C. 1701.01(FF). the Ohio Attorney General or Ohio Secre- 3R.C. 1701.01(GG). tary of State to bring an action to require 4R.C. 1701.03(A)(2). a benefit corporation to comply with the 5R.C. 1701.03(A)(3). beneficial purposes set forth in its articles. 6R.C. 1701.03(A)(4). Ohio now joins at least 37 other states 7R.C. 1701.03(A)(4) (emphasis added). that have enacted benefit corporation 8R.C. 1701.03(A)(5).

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9R.C. 1701.04(B)(3). Toledo, Ohio 10R.C. 1701.05(A)(2). ‡ Caution: These legislative proposals 11R.C. 1701.38(A)(3(C). were NOT enacted this year, for the reasons detailed in the Legislative Report in this is- 12 R.C. 1701.38(A)(3(C). sue of PLJO. They are expected to receive 13R.C. 1701.94(A)(6). early attention of the new General Assembly in 2021 and perhaps become effective later 14 R.C. 1701.96(A) this year. 15 R.C. 1701.96(B). The Governor recently signed into law 16R.C. 1701.59(D)(3). Sub HB 464 No. of the 133rd General As- 17R.C. 1701.96(c). sembly, amending, among other laws, R.C. 18See https://benefitcorp.net/policymake 2111.50 to allow guardians to engage in rs/state-by-state-status. estate planning for a ward. Under prior 19“In a steward-owned company, the guardianship law, a guardian could, with people actively involved in a business probate approval, engage in limited control the business. Equitable ownership types of estate planning for the ward. is separated from management, with the Previously, with probate court approval, a goal that management will focus on the business’s purposes and not just on the guardian could only: business’s profits.” Susan N. Gary, The E Convey or release the present, contin- Oregon Stewardship Trust: A New Type of Purpose Trust that Enables Steward- gent, or expectant interests in real or Ownership of a Business, 88 U. Cin. L. personal property of the ward, includ- Rev. 707, 707 (2020) (citing THE PUR- ing, but not limited to, dower and any POSEFOUNDATION,STEWARD- right of survivorship incident to a OWNERSHIP (2018), https://purposeecono my.org/content/uploads/purposebooklet_e survivorship tenancy, joint tenancy, n.pdf [https://perma.cc/Z8WP-LSH9]; The or tenancy by the entireties Purpose Foundation, RSF Social Finance, Organic Valley & Organically Grown Com- E Create revocable trusts of property of pany, Steward-ownership: Ownership and the estate of the ward that may not finance solutions for mission-driven busi- extend beyond the minority, disabil- nesses, presentation prepared for Expo- ity, or life of the ward West 2019 (on file with author); Alexander A. Bove, Jr., The Purpose Trust Has a New E Exercise rights to elect options under Purpose, 33 PROB. & PROP. 40 (Jul.-Aug. annuities and insurance policies, and 2019)). to surrender an annuity or insurance 20Or. Rev. Stat. Ann. § 130.193(2). policy for its cash value

EXPANDED “ESTATE R.C. 2111.50 now allows a guardian to PLANNING” FOR A WARD seek probate court approval to disclaim a ward’s interest in property, create transfer BY A GUARDIAN on death beneficiary designations for the (EFFECTIVE DATE TBD) ward, change beneficiary designations for By Nirakar “Nic” Thakur Esq. the ward’s insurance policies, retirement plans, or annuities, and create a revocable Law Office of Nirakar “Nic” Thakur Chairman, EPTPL Section Estate Plan- trust for a ward which may extend beyond ning for Ward Committee the life of the ward. Protections are put

K 2021 Thomson Reuters 117 JANUARY/FEBRUARY 2021 | VOLUME 31 | ISSUE 3 PROBATE LAW JOURNAL OF OHIO into place by requiring notice to any person perceived ambiguity in the previous 2017 whose interest in the ward’s estate upon version of Section 2106.13 which suggested death would be affected before probate that the election of a single automobile by court approval could be granted. a surviving spouse would reduce the allow- ance for support. Prior to H.B. 464, the The additional powers do not impose a 2017 version of Ohio Revised Code Section duty on a guardian to engage in estate 2106.13(A) stated: planning for the ward. Rather, the amend- ments to R.C. 2111.50 augment the estate Sec. 2106.13(A) If a person dies leaving a surviving spouse and no minor children, planning tools already available to guard- leaving a surviving spouse and minor chil- ians and enhance the guardian’s ability to dren, or leaving minor children and no protect, preserve, and efficiently adminis- surviving spouse, the surviving spouse, ter the ward’s estate for the ward and the minor children, or both shall be entitled to ward’s beneficiaries. The effective date of receive, subject to division (B) of this sec- the amendment is yet to be determined. tion, in money or property the sum of forty thousand dollars as an allowance for support. If the surviving spouse se- AMENDED OHIO REVISED lected one or more automobiles under CODE § 2106.13: section 2106.18 of the Revised Code, the allowance for support prescribed by REDUCTION IN ALLOWANCE this section shall be reduced by the FOR SUPPORT APPLIES value of the automobile having the lowest value if more than one automo- ONLY IF MULTIPLE bile is so selected. The money or prop- VEHICLES SELECTED BY erty set off as an allowance for support shall be considered estate assets. (Empha- SURVIVING SPOUSE sis added for discussion below.) By James J. Lanham Esq. By referencing “one or more automo- Critchfield, Critchfield & Johnston, Ltd. biles,” the statute arguably required a Wooster, Ohio reduction of the spousal allowance if even OSBA EPTPL Member a single automobile is selected by a surviv- ‡ Caution: These legislative proposals ing spouse. That interpretation ignored the were NOT enacted this year, for the reasons balance of the sentence conditioning the detailed in the Legislative Report in this is- sue of PLJO. They are expected to receive reduction on selecting “more than one early attention of the new General Assembly automobile.” Additionally, the legislative in 2021 and perhaps become effective later history of Section 2106.13 indicated a this year. continuing legislative intent to provide to H.B. 464 amends Ohio Revised Code Sec- a surviving spouse both the spouse’s full tion 2106.13 parts (A) and (C) to clarify share of the allowance for support and an that a surviving spouse is entitled to automobile without reducing the value of receive the spousal share of the allowance the support allowance. of support and one automobile without reducing the value of the allowance, con- The version of Section 2106.13(A) prior sistent with Ohio law since 1990. This to the 2017 version permitted a surviving clarification is desired to eliminate a spouse to claim up to two of the deceased

118 K 2021 Thomson Reuters PROBATE LAW JOURNAL OF OHIO JANUARY/FEBRUARY 2021 | VOLUME 31 | ISSUE 3 spouse’s automobiles. The language was ance for support (Section 2106.13) and the clear that the spouse’s support allowance additional election to select a single auto- would only be reduced if more than one mobile (Section 2106.18). After Section automobile was selected by the surviving 2106.18 was expanded to permit a spouse spouse as follows: to select two automobiles, the offset to the PREVIOUS Sec. 2106.13(A) If a person allowance for support was added in the dies leaving a surviving spouse and no statute (printed above) requiring the value minor children, leaving a surviving spouse of the least expensive automobile to be and minor children, or leaving minor chil- deducted from the allowance for support. dren and no surviving spouse, the surviv- This still resulted in the right for the ing spouse, minor children, or both shall surviving spouse to select a single automo- be entitled to receive, subject to division bile without reducing the allowance for (B) of this section, in money or property the sum of forty thousand dollars as an al- support. Our EPTPL Section unanimously lowance for support. If the surviving agreed that the current Section 2106.13(A) spouse selected two automobiles un- was intended to continue the option to der section 2106.18 of the Revised receive both the spousal allowance for sup- Code, the allowance for support pre- port and an automobile without reducing scribed by this section shall be re- the allowance for support. The intention of duced by the value of the automobile 2017’s House Bill 432 was to reduce the having the lower value of the two automobiles so selected. The money or spouse’s allowance for support only if property set off as an allowance for sup- multiple automobiles are elected, and port shall be considered estate assets. then, only to reduce the allowance by the (Emphasis added.) value of the least expensive automobile House Bill 432 then amended Section elected. 2106.18(A) on April 6, 2017 to the statute The statute is clear once again that the permitting more than two automobiles to spousal share of the allowance for support be selected by a surviving spouse if the is not reduced if a single automobile is total value of the vehicles does not exceed selected by the surviving spouse, and that $65,000. In conjunction with that change, the allowance is reduced by the value of House Bill 432 amended Section 2106.13 the lowest valued vehicle only if multiple to eliminate the reference to “two automo- automobiles are selected. H.B. 464 elimi- biles” and replaced it with the current nated the prior ambiguity in parts (A) and language referencing “one or more (C) Ohio Revised Code Section 2106.13 as automobiles.” follows: Every iteration of Sections 2106.13(A) (A) If a person dies leaving a surviving and 2106.18(A) since 1990 until the 2017 spouse and no minor children, leaving a version clearly gave the surviving spouse surviving spouse and minor children, or BOTH the spousal allowance for support leaving minor children and no surviving spouse, the surviving spouse, minor chil- and one automobile without reducing the dren, or both shall be entitled to receive, allowance. The 1990 legislation, adopted subject to division (B) of this section, in May 31, 1990 in Ohio House Bill 346, cre- money or property the sum of forty thou- ated the statutes for the spouse’s allow- sand dollars as an allowance for support.

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If the surviving spouse selected one or one of the most misunderstood and unfair more automobiles more than one provisions in the entire Uniform Trust automobile under section 2106.18 of the Code, states: Revised Code, the allowance for support prescribed by this section shall be reduced “Upon the lapse, release, or waiver of the power of withdrawal, the holder is treated by the value of the automobile having the as the settlor of the trust. . . .” lowest value if more than one automo- bile is of the automobiles so selected. This, standing alone, may appear innocu- The money or property set off as an allow- ous; however, the trouble becomes readily ance for support shall be considered estate apparent when it is read in conjunction assets. with R.C. 5805.06(A)(2): (c) If the surviving spouse selected one or “. . . with respect to an irrevocable trust, a more automobiles more than one creditor or assignee of the settlor may automobile under section 2106.18 of the reach the maximum amount that can be Revised Code, the probate court, in consid- distributed to or for the settlor’s benefit.” ering the respective needs of the surviving spouse and the minor children when al- These provisions, when combined, interfere locating an allowance for support under with sound, flexible estate planning. division (B)(3) of this section, shall con- sider the benefit derived by the surviving We discussed the problem with R.C. spouse from the transfer of the automobile 5805.06(A)(2) at length in our 2019 article having the lowest value if more than one “Asset Protection Opportunities Expanded automobile is of the automobiles so by the Repeal of Ohio Revised Code Sec- selected. tion 5805.06(B)(2)”1. The premise of that article was: GOING BARE, OR NOT: THE From a beneficiary’s perspective, an inher- REPEAL OF R.C. itance that is left in trust is always better 5805.06(B)(2) than one received outright. While it is commonly agreed that all generalizations By Richard E. Davis, Esq. are false, this one is not. The reason is simple: the protection afforded by a spend- Member, PLJO Editorial Advisory Board thrift provision is nearly ironclad. Almost and all clients recoil at the thought of a child Stephanie A. Lehota, Esq. losing an inheritance in a nasty divorce Krugliak, Wilkins, Griffiths & Dougherty from hell or to a potential greedy personal Co., LPA injury judgment creditor who was a recip- Canton, Ohio ient of an out of control award. We ‡ Caution: These legislative proposals know how difficult and expensive it can be were NOT enacted this year, for the reasons to establish an Ohio Legacy Trust, yet detailed in the Legislative Report in this is- even better protections can be so easily sue of PLJO. They are expected to receive provided in a simple third-party settled early attention of the new General Assembly beneficiary-controlled discretionary trust. in 2021 and perhaps become effective later this year. Why would anyone not do this? It’s be- cause many clients see no compelling need H.B. 464, by repealing R.C. to restrict their children’s access to their 5805.06(B)(2), expands asset protection op- eventual inheritances. It is our hope that portunities in Ohio. This section, which is with the repeal of R.C. 5805.06(B), a

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perceived drafting error in the Uniform The trust design that would be facilitated Trust Code will be corrected in Ohio, and by this repeal is essentially this: the set- each trust beneficiary can be given the tlor’s trust divides into equal shares for choice of receiving their inheritance out- the settlor’s children or other beneficiaries right or holding it as trustee of the de- ceased settlor. upon death. Each beneficiary is given a limited period of time, such as 60 days fol- In our practice, we encourage many of lowing the settlor’s death, to demand dis- our clients to leave their estates to their tribution of their share, but if that right is children or other primary beneficiaries in not exercised, then the share would auto- trust, with the beneficiary serving as the trustee. Many clients, however, are unsure matically be allocated to a separate sub- about how to proceed without first discuss- trust for the beneficiary. With respect to ing this idea with their children. Those each subtrust, the primary beneficiary discussions are typically unhelpful for vari- would (1) be the trustee; (2) be entitled to ous reasons. The optimal flexibility can be all income; (3) be entitled to such amounts achieved by letting each beneficiary decide of principal as the trustee, with expanded whether or not they want to receive their discretion, determines appropriate for inheritance outright (i.e. “bare”) or in trust their comfortable support and mainte- (“not”) following the settlor’s death. Under nance, without the need to consider other current law, permitting the choice between income or resources; (4) have a broad “outright” or “in trust” to be made after testamentary power of appointment; and the settlor’s death, destroys for all time (5) have the ability to select a disinterested the asset protection benefits of the ar- trustee, who would have the powers to dis- rangement, because letting the withdrawal tribute principal to the beneficiary for any right lapse causes the beneficiary to be purpose and to decant the trust. The trust treated as the settlor of the trust for credi- would also state that the interests of the tor rights purposes. While giving creditors remainder beneficiaries are subordinate to access to currently exercisable withdrawal the interest of the current beneficiary. rights is a well-established principle, al- Because decisions based upon more facts lowing that access for the remainder of the are almost always better than decisions beneficiary’s lifetime—long after the with- based upon fewer, the ability of the benefi- drawal right had lapsed—is a result that ciary to choose between going bare or not has virtually no support under common (i.e. receiving an outright distribution or law principles and is one that has no place leaving the inheritance in trust) is best whatsoever in the Ohio Trust Code. With made after the settlor’s death. the repeal of R.C. Sec. 5805.06(B)(2), this concern is eliminated, except with respect The obvious downside, of course, is that to unpaid creditors which the beneficiary a beneficiary might have creditor issues at might actually have during that limited the time of the settlor’s death that did not period during with the withdrawal right is exist at the date of the trust’s creation. In exercisable. Future non-exception credi- situations where a primary beneficiary has tors arriving on the scene after the right existing creditor issues, is a spendthrift, or has lapsed would have no ability to reach has significant marital issues, other op- trust assets. tions that we discussed in our earlier

K 2021 Thomson Reuters 121 JANUARY/FEBRUARY 2021 | VOLUME 31 | ISSUE 3 PROBATE LAW JOURNAL OF OHIO article might be preferable. Essentially, Lastly, the repeal of R.C. 5805.06(B)(2) however, the same type of choice can be of- removes a potential Medicaid challenge to fered by fairly simple safeguards. certain wholly discretionary trusts. Many trusts contain provisions permitting the Most practitioners understand that dur- ing the period a withdrawal power is trustee to convert the interest of a benefi- exercisable may be exercised, such as an ciary who becomes disabled into a wholly annual 5 and 5 power, the beneficiary’s discretionary trust. If such a beneficiary creditors can reach trust assets up to the had at one time a withdrawal right over amount that can be withdrawn. This is their trust prior to its conversion to a exactly what happened in Fahey Banking wholly discretionary trust, that beneficiary Company v. Carpenter2. In that case, the would, as a matter of law, been treated as beneficiary who had an annual right to the settlor of the trust. Just as R.C. withdraw the greater of $5000 or 5% of the 5805.06(B)(2) voids spendthrift protec- trust property was treated as the settlor of tions, it would also very likely result in the trust with respect to the amount that the wholly discretionary trust being could be withdrawn. As a result, the trust’s treated as a first party-settled trust, spendthrift provision was inapplicable, and thereby destroying the beneficiary’s eligi- the creditor presumably prevailed. What is bility for means tested public benefits such not generally understood, however, is the as Medicaid and Supplemental Security fact that under current law a withdrawal Income for the trust’s failure to qualify as right that lapsed potentially many years or decades earlier can forever destroy all an exempt trust under Ohio’s Medicaid asset protection features of the trust, trust rule. including its spendthrift protection, for the With the repeal of R.C. 5805.06(B)(2), we duration of the beneficiary’s lifetime. While can now offer our clients a much higher Fahey is the first Ohio Trust Code case degree of flexibility by allowing them to that addressed a lapsed withdrawal right, permit their beneficiaries to choose be- because the withdrawal right at issue was tween an outright distribution and a limited to the “5 and 5” power, the ability beneficiary-controlled asset protection of future creditors to reach trust assets trust. was not an issue.

With the repeal of R.C. 5805.06(B)(2), the ENDNOTES: beneficiary will no longer be treated as the settlor of the trust for creditor rights 1May/June 2019 Vol 29, Issue 5 purposes, so the issue of future creditors 2Fahey Banking Company v. Carpenter, will become moot. What will not become 2019-Ohio-679, 2019 WL 951188 (Ohio Ct. moot, however, are the tax consequences of App. 10th Dist. Franklin County 2019). the lapse of a withdrawal right, which This case was discussed in Case Sum- maries, 29 PLJO 89,131-32, 29 No. 4 Ohio were discussed in our earlier article and Prob. L.J. NL 13 (March/April 2019). which are of critical importance to benefi- ciaries who may be subject to the federal estate tax.

122 K 2021 Thomson Reuters PROBATE LAW JOURNAL OF OHIO JANUARY/FEBRUARY 2021 | VOLUME 31 | ISSUE 3 TRUSTEE REMOVAL BAR IS 5804.11(B) as follows: “A noncharitable ir- MORE CLEARLY LIMITED TO revocable trust may be modified, but not to remove or replace the currently serving CURRENTLY SERVING trustee, upon consent of all of the benefi- TRUSTEES ciaries if the court concludes that modifica- By Robert M. Brucken, Esq. tion is not inconsistent with a material purpose of the trust.” This sentence previ- Retired Partner, Baker & Hostetler LLP, Cleveland ously generating the uncertainty was Editor-in-Chief, Probate Law Journal of added in the Ohio version of the Uniform Ohio Co-Chair, Joint Committee of OSBA and Trust Code to limit the power of the court OBL on Ohio Trust Code to remove currently serving trustees to re- ‡ Caution: These legislative proposals moval for cause, and it was not intended were NOT enacted this year, for the reasons further to limit the power of the court or detailed in the Legislative Report in this is- sue of PLJO. They are expected to receive the use of private settlement agreements early attention of the new General Assembly with respect those who had yet even be- in 2021 and perhaps become effective later come trustees (how would you remove a this year. future or successor trustee only for cause, The Ohio Trust Code denies to a court where he has never had an opportunity to power to remove a trustee except for cause, misbehave, may not even know of his R.C. 5804.11(B) and 5807.06. Further, a private settlement agreement may contain nomination and may never yet become only provisions that could be properly ap- trustee because he may die or decline to proved by a court, R.C. 5801.10(C), so it serve or the trust may terminate?). R.C. also cannot remove a trustee except for 5801.10(B) requires only that “the cur- cause. Some have considered it uncertain rently serving trustees” be parties to such whether a nomination of a future or suc- an agreement, so that a named future or cessor trustee is subject to this bar, that is, successor trustee may not even be a party whether a future or successor trustee can to it or be aware of its nomination or of the be “removed” even before he assumes proceeding to change it. This amendment office. For example, a trust may provide simply adds to RC 5804.11(B) these two for the surviving spouse to be trustee and words from R.C. 5801.10(B). Further, for a named bank to become successor authority that a bar to removal of a trustee trustee when she dies, resigns or is dis- should not apply to one who has not yet abled and a successor may be required. even become trustee is the celebrated case May the court or a private settlement of Marbury v. Madison, 5 U.S. 137, 2 L. agreement change that successor to a dif- Ed. 60, 1803 WL 893 (1803); rarely can one ferent bank, or to an individual? cite such august authority for a current trust issue! For further information see By HB 464 the statute has been clarified to confirm that such a future or successor Brucken, When It’s Not Removal of a trustee may be changed by the court or by Trustee, 27 PLJO 159, 27 No. 4 Ohio Prob. a private settlement agreement, by an un- L.J. NL 1 (March/April 2017). derscored two-word addition to R.C.

K 2021 Thomson Reuters 123 JANUARY/FEBRUARY 2021 | VOLUME 31 | ISSUE 3 PROBATE LAW JOURNAL OF OHIO HB 464—TECHNICAL to the Act.2 Originally, these were associ- CORRECTIONS TO THE ated with another Ohio legislative bill. However, most recently, through the efforts OHIO LEGACY TRUST ACT— of Scott Lundregan of the OSBA and Rep. ORC 5816.01 ET SEQ. William Seitz, these technical corrections to the Ohio Legacy Trust Act, have now By D. Bowen (“Bo”) Loeffler, Esq. become a part of HB 464. Port Clinton and Sandusky, Ohio in collaboration with John E. Sullivan III, Esq., Brian Layman, Esq. and Daniel Grif- HB 464—TECHNICAL fith, Esq. CORRECTIONS TO THE OHIO ‡ Caution: These legislative proposals LEGACY TRUST ACT were NOT enacted this year, for the reasons detailed in the Legislative Report in this is- Proposed ORC 5816.10(I)— sue of PLJO. They are expected to receive early attention of the new General Assembly Decanting. Proposed changes to ORC in 2021 and perhaps become effective later 5816.10(I) will provide that “decanting” this year. can expressly take place from one Ohio THE OHIO LEGACY TRUST Legacy Trust to another Ohio Legacy Trust. ACT—BACKGROUND Proposed ORC 5816.05(N)—Swap Power. Proposed changes to ORC The Ohio Legacy Trust Act (“Act”) which 5816.05(N) will provide that an Ohio Leg- permits the creation of domestic asset acy Trust can expressly include a “swap protection trusts (also known as Ohio Leg- power” under Internal Revenue Code 675. acy Trusts) in Ohio became law on March 27, 2013. At the time, the Act was an inte- Proposed ORC 5816.10 (A) & ORC gral piece of a larger bill known as the 5816.10(K)—Clarification of Conflicts Ohio Asset Management and Moderniza- of Law and emphasis on the Strong tion Act of 2012 which would become a part Public Policy of Ohio. Proposed changes of House Bill 479 (129th Ohio General As- to ORC 5816.10(A) & ORC 5816.10(K) not sembly File No. 201). Since its enactment, only clarifies that these specific statutory the Act has received very favorable reviews provisions governing transfers involving by national commentators and practitio- an Ohio Legacy Trust, “preempt existing ners alike and has resulted in Ohio being fraudulent transfer laws,” but they are also consistently rated as one of the top jurisdic- the “strong public policy” of Ohio. tions for domestic asset protection trust Proposed ORC 58l6.02(H)— planning. In order to keep the Act up to Transfers. Proposed changes to ORC date and competitive with other domestic 5816.02(H) will clarify the current refer- asset protection , the original ence of a “transfer” to include “direct or authors1 of the Act working in conjunction indirect” transfers, thus making clear that with the Ohio State Bar Association’s indirect transfers into an Ohio Legacy (OSBA) Asset Protection and Legacy Trust trust are also covered by its protections. Subcommittee and Ohio Majority Floor Leader Rep. William Seitz (R-Cincinnati), Proposed ORC 58l6.02(S)(1)(b)(i)— prepared a number of technical corrections Superintendent of Banks. Proposed

124 K 2021 Thomson Reuters PROBATE LAW JOURNAL OF OHIO JANUARY/FEBRUARY 2021 | VOLUME 31 | ISSUE 3 changes to ORC 5816.02 (S) by adding scope of this particular legacy trust statu- ORC 5816.0(S)(1)(b)(i) will clarify the cur- tory provision. rent reference to the “superintendent of Proposed ORC 5816.10(J)— banks” to include a more contemporary ref- Clarification of the words Action and erence to the “superintendent of financial Proceeding. Proposed changes to ORC institutions.” 5816.10 (J) are added to give more consis- Proposed ORC 5816.02(S)(2)— tent meaning to the words “action” and Records. Proposed changes to ORC “proceeding.” 5816.02(S)(2) will clarify the current refer- Proposed ORC 5816.02(S)—New Ad- ence to “records” to include a more modern- ditions to Qualified Trustee. Proposed ized reference to “electronic or physical” changes to ORC 5816.02(S) include provi- records. sions as set forth in new ORC Proposed ORC 5816.05(A)—Defined 5816.02(S)(b)(ii)(I)-(IV) to permit an Ohio Event. Proposed changes to ORC Family Trust Company (FTC) to be the 5816.05(A) will clarify the current refer- qualified trustee of an Ohio Legacy Trust. ence to a “defined event” to include a more A “qualified trustee” as defined under Ohio familiar reference to a “stated Revised Code (“ORC”) 5816.02(S) is re- contingency.” quired of all Ohio Legacy Trusts. HB 464 would permit a licensed or unlicensed Ohio Proposed ORC 5816.06(E)—Affidavit Family Trust Company (“FTC”) organized of Solvency. Proposed changes to ORC as a corporation or limited liability com- 5816.06(E) will include a “then” to create a pany under Ohio law as set forth in ORC clear “if-then” statement regarding the ef- 1112.01, et. seq., to serve as a qualified fects of a flawed or omitted affidavit of trustee. The criteria under proposed ORC solvency. 5816.02(S)(b)(ii)(I)-(IV), for an Ohio FTC to Proposed ORC 5816.09—Orders. Pro- be a qualified trustee for an Ohio Legacy posed changes to ORC 5816.09 will include Trust would include: maintaining an office various grammatical and definitional in Ohio, maintaining a bank or brokerage clean-ups related to “orders” issued by account in Ohio, maintaining electronic or (typically out-of-state courts) that physical records in Ohio and satisfying the do not apply Ohio law to a legacy trust other requirements of ORC 1112.14 (B), dispute. (C), (D) and E(1). Additionally, when a FTC is the qualified trustee of an Ohio Legacy Proposed ORC 5816.10(E)(2)— Trust (“OLT”) and in order to maintain the Grammar Clean Ups. Proposed changes asset protection integrity of an Ohio Leg- to ORC 5816.10(E)(2) will make “gram- acy Trust involving the settlor or benefi- matical clean-ups” to its last sentence. ciary of an OLT, proposed ORC Proposed ORC 5816.10(H)—Scope of 5816.02(S)(b)(ii)(V) provides the following Legacy Trust Matters. Proposed changes requirements and protections: to ORC 5816.10 (H) include inserting the ”No beneficiary of a legacy trust, when act- phrase “any legacy trust matter” twice, to ing for or on behalf of a family trust more clearly express the intended broad company, or when acting as an officer,

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manager, director, employee, or other regulations. After that, no one will get agent or representative of a family trust through a TSA checkpoint to board an company, may have any vote or authority airplane without it. This has caused a sig- regarding any decision to make or with- nificant increase in name change cases for hold any distribution from such legacy trust to or for the benefit of that Ohio probate courts. beneficiary.” In order to obtain a compliant ID, a person’s name must be consistent on all of- ENDNOTES: ficial identity documents—birth record, 1The original authors of HB 479 and social security card, marriage record, the Ohio Legacy Trust Act were D. Bowen divorce , driver’s license, passport, (“Bo”) Loeffler, John E. Sullivan III, Mi- or other government-issued form of chael Stegman, Brian Layman and Daniel Griffith. D. Bowen (“Bo”) Loeffler and Mi- identification. Each link in the person’s chael Stegman are the currently serving chain of identity must connect, from the co-chairs of the Ohio Asset Protection and birth record forward. Even minor misspell- Legacy Trust subcommittee of the Ohio ings and inconsistencies are problematic, State Bar Association’s Estate Planning Trust & Probate Law Council. and changes must be properly documented. 2Much of the content of this article also If there is a break in the chain of identity, comes from the proponent testimony and a name change in probate court is often witness statements of D. Bowen (Bo) Loef- the only way to fix it. fler and John E. Sullivan III submitted to the Ohio House of Representatives Civil Current Ohio law does not provide an Committee on December 9, 2019. appropriate remedy to fix name discrepan- In particular, the author also thanks John cies in all cases. Chapter 2717 of Ohio E. Sullivan III for his detailed analysis of the technical corrections contained in his Revised Code in its present form permits witness statement submitted to the Civil changing a person’s name only to some- Justice Committee. thing different than the name on the birth record, ignoring other scenarios. The PROPOSED UPDATES TO court’s order changes the name for all OHIO NAME CHANGE LAW purposes from that point forward, but the new name often differs from the name the Hon. Thomas M. O’Diam person uses on other official identity docu- , Greene County Probate Court ments, which causes new problems in the Xenia, Ohio person’s chain of identity. ‡ Caution: These legislative proposals were NOT enacted this year, for the reasons For example: Assume a married woman, detailed in the Legislative Report in this is- who has taken her husband’s surname, sue of PLJO. They are expected to receive early attention of the new General Assembly files a name change action to correct a dis- in 2021 and perhaps become effective later crepancy on her original birth record. The this year. court order granting the name change will October 1, 2021 is the deadline to obtain necessarily use her birth surname. Since a federally compliant driver’s license or the name change order is effective for all state identification card under the Depart- purposes, the applicant would effectively ment of Homeland Security REAL ID lose her married surname. While she fixed

126 K 2021 Thomson Reuters PROBATE LAW JOURNAL OF OHIO JANUARY/FEBRUARY 2021 | VOLUME 31 | ISSUE 3 one link of her identity chain, she broke ‡ Caution: These legislative proposals the links on identity documents in her were NOT enacted this year, for the reasons detailed in the Legislative Report in this is- married name. sue of PLJO. They are expected to receive early attention of the new General Assembly A portion of the Probate Omnibus Bill, in 2021 and perhaps become effective later H.B. 464, in the previous session of the this year. Ohio Legislature sought to revamp the Substitute House Bill 464 was the legis- name change process. H.B. 464 failed to lative vehicle in the 133rd General As- receive a final vote before the Legislature sembly for several legislative proposals adjourned for the year, but the name developed by the Ohio State Bar Associa- change legislation will be reintroduced in tion (“OSBA”) Estate Planning, Trust, and the current legislative session. Probate Law Section. The bill was first introduced on January 9, 2020 and, after The name change legislation has two its assignment to the House Civil Justice objectives. First, it simplifies the existing Committee, it was amended to include a name change process, making it faster, less number of additional legislative proposals cumbersome, and less expensive. Second, from groups other than the OSBA. While it adds a completely new process—a name Sub. H.B. 464 ultimately failed to win final conformity action—to make a person’s approval in the 133rd General Assembly, it legal name consistent on all official identity was well supported in both the House and documents by correcting a misspelling, in- the Senate, and it is anticipated that it will consistency, or other error on one or more official identity documents. be re-introduced and placed on a “fast track” to enactment early in the 134th Gen- The public will have better tools to fix eral Assembly. problems in their identity documents, and probate courts will have broader discretion The additional legislative proposals in to tailor useful remedies. Residency re- Sub H.B. 464 that did not originate with quirements will shorten from one year to the OSBA’s Estate Planning, Trust, and 60 days. Hearings and notice by publica- Probate Law Section included changes to tion will be discretionary, rather than the Ohio Legacy Trust Act (which are mandatory. The process should take a mat- described in a separate article by Bo Loef- ter of days, instead of weeks or months. fler), the modernization of name change This legislation is a win for everyone. procedures (which are described in a sepa- rate article by Judge Thomas O’Diam), and ADDITIONAL PROPOSALS the five additional proposals that are sum- marized below. OF SUB. H.B. 464 STILL AWAITING ENACTMENT NONPROFIT CORPORATION By John F. Furniss III, Esq. AS GUARDIAN Chair, OSBA Estate Planning, Trust, and Sub. H.B. 464 includes a proposal sup- Probate Law Section ported by the Ohio Judicial Conference, Vorys, Sater, Seymour and Pease LLP Columbus, Ohio the Ohio Guardianship Association, and Member, PLJO Editorial Advisory Board Advocacy for Protective Services, Inc. that

K 2021 Thomson Reuters 127 JANUARY/FEBRUARY 2021 | VOLUME 31 | ISSUE 3 PROBATE LAW JOURNAL OF OHIO would amend R.C. 2111.10 to provide that which is the initial step in beginning a an Ohio non-profit, tax-exempt corporation mental health treatment placement (or so- can be appointed as guardian of both the called “civil commitment”). According to estate and the person of an incompetent proponent testimony offered by Judge when certified by the probate court to Elinore Marsh Stormer of the Summit receive such an appointment. This pro- County Probate Court, that particular posal would create a “small county alterna- change was important because “the num- tive” to the guardianship services board ber of psychiatrists who practice in hospital under R.C. 2111.52. For a further descrip- and community settings has dropped tion of this proposal, please see J. Furniss, substantially. Frankly, there were not 2020 Probate Omnibus Bill (H.B. 464) At- enough doctors available to work through tracts Additional Proposals, 30 Prob. L.J. the initial process so mentally ill people Ohio 237 (July-Aug. 2020). were simply being returned to the streets.”3 “[C]ommunity treatment centers now rely After being added to Sub. H.B. 464, this heavily on specially trained advanced proposal was amended to provide that the practice nurses to work under physician nonprofit corporation appointed as guard- supervision directly with patients. Psychi- ian of an incompetent must be domiciled atric nurse practitioners have taken a huge in Ohio and shall not be the residential burden off the doctors allowing them to caregiver, health care provider, or employer focus on the medical aspects of treatment.”4 of the incompetent.1 After an emergency hospitalization, a INVOLUNTARY MENTAL patient is entitled to a hearing to deter- HEALTH TREATMENT mine whether the patient shall be commit- PLACEMENTS ted for an initial phase, not to exceed 90 days, and a hearing for any subsequent Sub. H.B. 464 includes a proposal that is extensions. Under current law, at the hear- supported by both the Ohio Probate Judges ings, the court is required to consider the Association and the Ohio Judicial Confer- patient’s diagnosis and prognosis from a ence and would make various changes to psychiatrist or licensed clinical the process for mental health treatment psychologist. However, courts have re- placements under R.C. Chapter 5122. No- ported that there are not enough profes- tably, the proposal would enable specially sionals who are in a position to testify at trained advanced practice registered these hearings. As an example, Judge nurses to testify at initial phase and exten- Stormer noted in her testimony, “Recently, sion hearings for such placements. in Summit County, we had to cancel exten- sion hearings because there were no doc- Under a 2018 change to Ohio law,2 clini- tors available to testify.” She added, “Sum- cal nurse specialists and certified nurse mit County is not unique. The shortage of practitioners with special psychiatric- psychiatrists exists through Ohio, espe- mental health certifications were permit- cially in rural areas.”5 ted to initiate emergency hospitalizations of mentally ill persons subject to court or- Sub. H. B. 464 would expand the profes- der (within the meaning of R.C. 5111.01), sionals who can provide testimony as to a

128 K 2021 Thomson Reuters PROBATE LAW JOURNAL OF OHIO JANUARY/FEBRUARY 2021 | VOLUME 31 | ISSUE 3 patient’s diagnosis and prognosis by autho- ported by the Ohio Judicial Conference to rizing testimony from clinical nurse spe- reform private judging. According to propo- cialists and certified nurse practitioners nent testimony from Judge Randall Fuller with special psychiatric-mental health on behalf of the Ohio Judicial Conference, certifications.6 this proposal was prompted by “numerous problems as it relates to the use of private METHOD FOR MAKING judges, particularly in domestic relations 7 ANATOMICAL GIFTS cases.” These problems were detailed in other proponent testimony before the Sub. H.B. 464 includes a proposal that House Civil Justice Committee.8 was developed by organ procurement orga- The proposal would address these seri- nizations Lifebanc, Life Center, Life Con- ous concerns by making three changes to nection and Lifeline of Ohio. The OSBA R.C. 2701.10. First, it would provide courts also expressed its support for this proposal. with discretion to refer a case to a private This proposal would narrow the methods judge, rather than requiring a court to re- by which a donor may make an anatomical fer a matter upon the request of the gift. It would eliminate the opportunity to parties. Second, it would require that the express a willingness to make anatomical written agreement between the parties and gifts by last or by liv- the private judge set forth a procedure for ing will declaration. Instead, donors could terminating the agreement. Third, it would signify their willingness to make anatomi- return jurisdiction to the referring judge cal gifts by authorizing a statement or upon conclusion of the referred action or symbol to be imprinted on the donor’s driv- determination of the submitted issue or er’s license or identification card, by com- question. It is hoped that, with these changes, the practice of private judging municating such intent to witnesses dur- 9 ing a terminal illness or injury, by signing may continue in appropriate cases. a donor card or other record, or by being included in the donor registry. ADMINISTRATION OF CEMETERY ENDOWMENT The rationale for this change is that it CARE TRUSTS would allow for donors to be more quickly identified and would avoid confusion that Sub. H.B. 464 includes a proposal that sometimes results when there are multiple would update the provisions of Ohio law inconsistent instructions. For an additional relating to the investment and expendi- discussion of this proposal, please see J. ture of cemetery endowment care trusts Furniss, 2020 Probate Omnibus Bill (H.B. that are required to be maintained by 464) Attracts Additional Proposals, 30 cemeteries under R.C. § 1721.21. For ad- Prob. L.J. Ohio 237, 30 No. 6 Ohio Prob. ditional discussion of this proposal, please L.J. NL 3 (July-Aug. 2020). see J. Furniss, 2020 Probate Omnibus Bill (H.B. 464) Attracts Additional Proposals, PRIVATE JUDGING REFORM 30 Prob. L.J. Ohio 237 (July-Aug. 2020).

Sub. H.B. 464 includes a proposal sup- ‡ Author’s Note: While political predic-

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tions can sometimes be as reliable as Plaintiff had been helpful to decedent weather forecasts in Ohio, these particular and pre-deceased sister, and had claimed proposals do appear to be well-supported and are likely to move forward in a new bill that he was told by the decedent’s sister in 2021. he would be the executor of her estate and would be “pleasantly surprised” when she passed. After her death, no will was pro- ENDNOTES: duced, and, months later, defendant (who 1This particular change was the result was her primary heir by intestacy) was of a collaboration between the Ohio Judi- claimed to have admitted finding and cial Conference and Rep. Skindell. See House Civil Justice Committee. Proponent destroying the will that was alleged to Testimony on House Bill 464 from Judge provide for plaintiff. The plaintiff pre- Timothy J. Grendell for the Ohio Judicial sented this narrative claim as a claim Conference (Nov. 17, 2020). against the defendant’s estate, and the 2See 132 Sub. H.B. 111 (effective, in claim was rejected. The court granted part, on Sept. 28, 2018). summary judgment to defendant’s estate 3See House Civil Justice Committee, (defendant having since died), holding that Proponent Testimony on House Bill 464 the statute of frauds, R.C. 1335.05 barred from Judge Elinore Marsh Stormer (Nov. 17, 2020). the action; any promise of testamentary gift was only oral, and was required to be 4See House Civil Justice Committee, Proponent Testimony on House Bill 464 in writing as based on services by plaintiff from Judge Elinore Marsh Stormer (Nov. to others than defendant. 17, 2020). The appellate court reversed and ordered 5See House Civil Justice Committee, Proponent Testimony on House Bill 464 trial, noting the claim that the oral con- from Judge Elinore Marsh Stormer (Nov. tract was also that plaintiff would inherit 17, 2020). from defendant if he stopped looking for 6See R.C. 5122.15(E). the missing will, a contract not required to 7House Civil Justice Committee, Propo- be in writing. The case also contains dis- nent Testimony, Judge Randall Fuller for cussion of a multitude of other claims, such Ohio Judicial Conference, Feb. 26, 2020. as whether the probate court has jurisdic- 8See House Civil Justice Committee, tion to hear claims of fraud. Proponent Testimony of John Kim, Feb. 26, 2020. Thanks to Timothy J. Gallagher of Rem- 9See Senate Committee, Pro- inger Co. LPA of Cleveland for editing this ponent Testimony of Paul Pfeifer for Ohio summary. Judicial Conference, Dec. 16, 2020. DeChellis v. Estate of DeChellis CASE SUMMARIES Headnote: Gifts

Widok v. Estate of Wolf Citation: 2020-Ohio-5111, 2020 WL Headnote: Wills and contests 6375476 (Ohio Ct. App. 5th Dist. Stark County 2020) Citation: 2020-Ohio-5178, 2020 WL 6504277 (Ohio Ct. App. 8th Dist. Cuyahoga $750,000 cash was claimed to be ex- County 2020) cluded from the probate estate as a com-

130 K 2021 Thomson Reuters PROBATE LAW JOURNAL OF OHIO JANUARY/FEBRUARY 2021 | VOLUME 31 | ISSUE 3 pleted predeath gift. The estate was suc- minds us to check carefully the bank forms cessful in a R.C. 2109.50 action to claim it, for such safe deposit boxes. that was affirmed on appeal. The claimed Matter of Evans v. Evans-Sanford donee then filed to vacate these judge- ments, claiming that the probate court Headnote: Wills and contests lacked jurisdiction because it was a com- pleted gift and thus could not be part of Citation: 2020-Ohio-5315, 2020 WL the probate estate. Of course, the probate 6743975 (Ohio Ct. App. 4th Dist. Scioto court denied vacation, affirmed on this County 2020) appeal. The prior action had determined it Decedent left a wife and son, the latter was not a completed gift and is res in prison. The will leaving all to the wife judicata. Note the circuity, with plaintiffs was probated and the estate administered claiming that IF their desired result had and closed. Over 20 years later the son been obtained, that is, if the cash had been filed a will contest. The three (then four) excluded from the estate, THEN there month period for contest under R.C. might have been no jurisdiction. But see 2107.76 had apparently run, but the son R.C. 2101.24(B) that expressly grants claimed the period was tolled as he was in probate courts concurrent jurisdiction over prison, citing R.C. 2107.76 as tolling the “an alleged gift.” So why was jurisdiction will contest period while a person is “under even questioned? any legal disability” and R.C. 2131.02 that defines legal disability to include “persons Estate of Grossman in captivity.” The trial court granted judg- Headnote: Safe deposit box contents ment on the pleadings to the mother, hold- ing that a person in the penitentiary was Citation: 2020-Ohio-5236, 2020 WL not “in captivity.” The appellate court af- 6559175 (Ohio Ct. App. 11th Dist. firmed, noting also that the son had been Ashtabula County 2020) out of prison for a period so even by his Decedent had a bank safe deposit box argument the tolling had ended long before that contained $36,000 cash belonging to his suit. her. She later added one daughter on the Saber Healthcare v. Hudgins box. The bank box form said that the box itself was joint and survivorship with Headnote: Claims decedent and the daughter as co-lessors, Citation: 2020-Ohio-5603, 2020 WL but that the form did not affect title to the 7250348 (Ohio Ct. App. 9th Dist. Summit contents of the box. Decedent left three County 2020) daughters, and litigation among them followed. A probate estate beneficiary filed This is yet another late claim. The nurs- exceptions to the estate inventory, chal- ing home mailed a post-death claim for lenging omission from it of the cash in the pre-death services to the person who had box. The probate court held the cash was been guardian and would later become the an asset of the probate estate and not joint administrator. The claim was mailed two and survivorship, relying on the bank box months after death, but the administrator form. Affirmed on appeal. This case re- was not appointed until a year after death.

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The nursing home filed a motion in the DeChellis v. Estate of DeChellis, 2020- probate court to compel payment. The mo- Ohio-5111, 2020 WL 6375476 (Ohio Ct. tion was dismissed because the claim was App. 5th Dist. Stark County 2020), supra. not presented to a then-acting administra- In re Estate of Shaffer tor, and his failure to act on it within 30 days could not be an acceptance of the Headnote: Wills and contests claim. Affirmed on appeal. The court noted Citation: In re Estate of Shaffer, 2020- that the nursing home could have opened Ohio-6672, 2020 WL 7379116 (Ohio 2020), the estate itself within the six months pe- opinion superseded on reconsideration, riod and then presented its claim, reject- 2020-Ohio-6973, 2020 WL 7866253 (Ohio ing its argument that such an option was 2020) and reconsideration granted, 2020- unreasonable. Ohio-6985, 2020 WL 7864347 (Ohio 2020) In re Estate of DeChellis Decedent became ill, decided to go to the Headnote: Removal of fiduciary hospital, asked those present for some paper, and wrote out a homemade will that Citation: 2020-Ohio-5631, 2020 WL left a portion of his estate to a friend. The 7259179 (Ohio Ct. App. 5th Dist. Stark two witnesses present, one of whom was County 2020) that friend, did not sign the instrument. Extensive prior litigation resulted in a When decedent later died, probate under concealment judgment under RC 2109.50 RC 2107.24, that permits probate of a will for $750,000 against certain beneficiaries not signed by the witnesses on clear and of the estate. All of the beneficiaries then convincing that the instrument entered into a settlement. The administra- was intended as a will, was denied for lack tor of the estate declined to follow the of such evidence. The probate court also settlement as it varied from the conceal- held that the bequest to the interested wit- ment judgment and other prior court or- ness was voided by RC 2107.15, that voids ders, and instead filed with the court a a bequest to a witness whose testimony is request for instructions. The beneficiaries necessary to prove the will. The appellate countered with demand for his removal for court at 2019-Ohio-234 reversed and al- failing to honor their settlement. The trial lowed probate, finding sufficient evidence court held the administrator entitled to and holding that RC 2107.15 does not ap- obtain its instructions; further, that the ply to a proceeding under RC 2107.24 and administrator could not honor the settle- void the bequest to a witness testifying in ment without its approval by the court the proceeding where the witness did not because the concealment judgment was not sign the will. just for the benefit of the beneficiaries but The Ohio Supreme Court unanimously also involved the estate and the court as reversed the appellate court, holding that parties to it; and the court thus declined to RC 2107.15 the interested witness statute remove the administrator. Affirmed on applies to all wills, including those admit- appeal. ted under RC 2107.24 for lack of signing See related completed predeath case of by the witnesses. Otherwise an interested

132 K 2021 Thomson Reuters PROBATE LAW JOURNAL OF OHIO JANUARY/FEBRUARY 2021 | VOLUME 31 | ISSUE 3 witness could maintain his bequest by wife, with remainder equally to all seven simply declining to sign the will. See children. The principal trust asset was Hochstetler, “Where There’s a Will, There’s three companies in the trucking and con- a Way: The Harmless Error Rule, struction business. Two sons were trustees Interested-Witness Rule, and In re Estate and trust advisers. Shortly before the of Shaffer,” 30 PLJO 202, 30 No. 5 Ohio death of the wife, one son trustee discov- Prob. L.J. NL 5 (May/June 2020). ered issues with the other son trustee’s (his brother) management of the trusts and Estate of Welch v. Taylor companies, and ultimately sued over it for Headnote: Gifts himself and his siblings. The trial court found that the son trustee had largely Citation: 2020-Ohio-6909, 2020 WL ignored the terms of the trusts, treated 7690304 (Ohio Ct. App. 12th Dist. Clinton them as his personal accounts and substan- County 2020) tially mismanaged them for his personal Decedent had after the death of his wife benefit, removing the son as trustee and become dependent upon defendant, and trust adviser and surcharging him about made various lifetime gifts to defendant. $2.8 million for mismanagement and After his death, plaintiffs as beneficiaries embezzlement. Affirmed on appeal. of his estate sued to reclaim the gifts for his estate, claiming lack of capacity to In re Estate of Baughman make them and undue influence. The Headnote: Powers of attorney probate court granted summary judgment to defendant, for four reasons: it was too Citation: 2020-Ohio-6928, 2020 WL late to file a will contest, it was too late to 7711249 (Ohio Ct. App. 5th Dist. Licking file a claim against the estate, the final ac- County 2020) count had already been filed and no Decedent left four sons. He had given a grounds were claimed for reopening it, and power of attorney to one of them. A second plaintiff’s prior filing in the general divi- son filed a petition under R.C. 1337.36 for sion of the trial court (that was dismissed review of the actions of the agent-son dur- for lack of jurisdiction) barred action in ing their parent’s lifetime. The probate probate. Reversed on appeal and re- court found what it described as theft, manded, none of the four grounds was pre- recklessness, dishonesty, carelessness and sented by the case, that sought only return poor judgment by the agent; indeed, the of the gifts to the estate. agent admitted he had never even read the Zarlenga v. Zarlenga POA document. The agent was surcharged with over $300,000. Affirmed on appeal. Headnote: Removal of trustee In re L.M.W. Citation: 2020-Ohio-6947, 2020 WL 7753954 (Ohio Ct. App. 7th Dist. Mahon- Headnote: Wills and contests ing County 2020) Citation: 2020-Ohio-6856, 2020 WL Decedent left a wife and seven children. 7682285 (Ohio Ct. App. 9th Dist. Summit He established A/B trusts for the life of his County 2020)

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Decedent’s 1991 will was admitted to probate, naming her daughter as residu- ary beneficiary. Later a granddaughter filed a later 2002 will naming the grand- daughter as residuary beneficiary. The court held the hearing required by R.C. 2107.22, testimony was presented by the witnesses to the later will (the attorney and his secretary) on its proper execution, and it was admitted to probate. The daugh- ter appealed arguing that the witnesses to the 2002 will did not know the testatrix who thus might have been an imposter. The appellate court affirmed admission of the will, noting that a hearing on admis- sion is not a will contest and that issues such as the identity of the testatrix and undue influence were for any later contest only.

134 K 2021 Thomson Reuters PROBATE LAW JOURNAL OF OHIO JANUARY/FEBRUARY 2021 | VOLUME 31 | ISSUE 3 SUBJECT INDEX Spievack, Charitable Trusts: A Practical Approach to Avoiding Cy Pres or Deviation (Rolling 12-month index covering Janu- Actions, Jan/Feb 2020 ary 2020 to December 2020) Krall, Refresher on the Institutional Adoption Trust Funds Act, March/April 2020

Carlin, Should Ohio Legislate Equitable In re Estate of Moritz v. Ohio State Adoption—Like Texas? Jan/Feb 2020 Univ., 2020-Ohio-5012, Nov/Dec 2020

Arbitration Clauses Claims

Gallagher and Shugar, An Introduction Hatfield v. Heggie, 2020-Ohio-1156, May/ to Trust Arbitration, Jan/Feb 2020 June 2020

Hughes v. Hughes, 2020-Ohio-4653 (10th Krall, Legal Uncertainty With Respect Dist.), Nov/Dec 2020 to Creditor Claims Against Non-Probate Assets (Revisited), July/Aug 2020 Asset protection Concealment of assets Loeffler, Asset Protection Planning Basics: Using State and Federal Exempt In re Estate of Jackson, 2020-Ohio-4334, Property Laws and Exemption Like Strate- Sept/Oct 2020 gies (Part 1), May/June 2020 Constructive trust

Loeffler, Asset Protection Planning Lewandowski, The Misapplication of Basics: Using State and Federal Exempt Constructive Trust, Sept/Oct 2020 Property Laws and Exemption Like Strate- gies (Part II), Sept/Oct 2020 COVID-19 experience

Business Planning Frye and Davis, Changing With the Times: Remote Signings and Pandemic Stautberg and Spievack, More Than the Notarization, July/Aug 2020 Money: Ohio’s Proposed Business Benefit Corporation, May/June 2020 Graf, Practicing During the Pandemic, July/Aug 2020 Cases Layman, How COVID-19 Has Affected Forbes, Roundup: 2019 Year My Practice, July/Aug 2020 in Review for Beneficiaries, Fiduciaries Moore, Estate Planning Adventures Dur- and Practitioners, Jan/Feb 2020 ing COVID-19, July/Aug 2020 Hindel, Recent Ohio Appellate Court Layman, House Bill 197: Impact of Toll- Cases Interpret Ohio Trust Code, Nov/Dec ing on Your Practice, Sept/Oct 2020 2020 Disposition of body Charities Slagle and Tracey, Disputes Over the

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Right of Disposition of Bodily Remains, Robertson, Contingency Tax Planning for March/April 2020 Year-End 2020, Nov/Dec 2020

Millonig, Disinterment vs. Right of Dis- Ethics position Statute, May/June 2020 Penvose, A Few Basic “Do” and “Don’t” Elder Law Practice Tips for an Ethical Probate Prac- tice, March/April 2020 McFadden and Bushnell, Elder Law Considerations for Estate Planners, Jan/ Evidence Feb 2020 Fried, Resolving Ambiguity in Wills and Electronic wills Trusts: Homage to Testator/Settlor Intent, Nov/Dec 2020 Gee, Controversial HB 692: Pushed into the Swirling Waters of Physical Presence, Guardianship Conscious Presence and Electronic Pres- Lomelino v. Lomelino, 2020-Ohio-1645, ence, Sept/Oct 2020 May/June 2020 Estate administration Income Taxes Brucken, The Missing Probate Reform, Morrow and Hochstetler, Crouching Ti- March/April 2020 ger, Hidden Taxes; Unexpected Income-Tax Monihan and Payne, Dilemma for Execu- Effects of Early Trust Terminations, Jan/ tors and Survivors: Should CARES Act Feb 2020 Economic Impact Payments to Decedents Legislation Be Returned? July/Aug 2020 Furniss, Emergency Legislation to Facil- In re Estate of Williams, 2020-Ohio- itate Execution of Estate Planning 5064, Nov/Dec 2020 Documents: Efforts Are On-Going, July/ Estate Planning Aug 2020

Makuch, Estate Planning Under the Furniss, 2020 Probate Omnibus Bill (HB SECURE Act, March/April 2020 464) Attracts Additional Proposals, July/ Aug 2020 Murphy v. Hall, 2020-Ohio-163, March/ April 2020 Medicaid

Krall, Executing Estate Plans During Browning, Estate Recovery Case Upends the Lockdown, May/June 2020 Probate Insolvency Procedures, May/June 2020 Gariepy, A Plandemic of Wealth Transfer Opportunities, Nov/Dec 2020 Notary Public

Laub and Loomis, 2020: A Year of Uncer- Weinewuth, Update on Notarial Certifi- tainty Resulting In an Ideal Time for Year- cate Requirements: Statutory Revision Ending Gifting, Nov/Dec 2020 Forthcoming, Jan/Feb 2020

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Weinewuth, Adventures of an Online No- Doran v. Doran, 2020-Ohio-1583, May/ tary, May/June 2020 June 2020

Estate of Armatas v. Cleveland Clinic Retirement plans Foundation, 2020-Ohio-3338, July/Aug Fidler, Who Cares about Being Secure? 2020 May/June 2020 Ohio Trust Code Rule Against Perpetuities Brucken, Researching the Ohio Trust Culler, Perpetual Confusion: A Modest Code, Sept/Oct 2020 Proposal to Clear Up a Bad Rap, July/Aug Options 2020

Fahncke v. Fahncke, 2020-Ohio-433, Spendthrift clauses March/April 2020 Vary and Friedman, Beneficiary With- Powers of Attorney drawal Powers: A Hole in the Armor of Ohio Third-Party Settled Spendthrift Hutchings v. Hutchings, 2019-Ohio- Trusts, Nov/Dec 2020 5362, Jan/Feb 2020 Statute of Limitations Pristine Senior Living v. Mistler, 2020- Ohio-416, March/April 2020 Helton v. Fifth Third Bank, 2019-Ohio- 5208, Jan/Feb 2020 Hillier v. Fifth Third Bank, 2020-Ohio- 3679, Sept/Oct 2020 Taxes

Principal and Income Act Borgmann and Pinta, Tax Implications of Probate Settlement, Jan/Feb 2020 Evans, Uniform Fiduciary Income and Principal Act Under Study for Adoption in McCoy v. McCoy, 2019-Ohio-5227, Jan/ Ohio, May/June 2020 Feb 2020

Crown Hill Cemetery Assn. v. Maxfield, Vanover, Increased Charitable Income 2020-Ohio-3433, July/Aug 2020 Tax Deductions under the CARES Act, Sept/Oct 2020 Privilege Transfer on death Mikhaiel, The Attorney-Client Privilege: Three’s a Crowd? March/April 2020 Webb v. Anderson Children Trust, 2020- Ohio-4985, Nov/Dec 2020 Real estate Trust Administration and Termination Drexler, Back to Basics: How Your Client Ramer, “Exit in an Orderly Fashion” Holds Title to Real Estate Makes a Differ- Revisited: A Proposed Statutory Solution ence, July/Aug 2020 for Ohio Irrevocable Trusts, March/April Removal of Trustee 2020

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Catley v. Boles, 2020-Ohio-240, March/ Lewandowski, Evidentiary Issues in April 2020 Probate Litigation, Nov/Dec 2020

Goddard v. Goddard, 2020-Ohio-3372, July/Aug 2020

Dauterman, In Absentia—What Does a Trustee Do When a Beneficiary Leaves the Grid, Sept/Oct 2020

In re Trust of Mellott, 2020-Ohio-3738, Sept/Oct 2020

In re Estate of Abraitis, 2020-Ohio-4222, Sept/Oct 2020

Brucken, Trustee Vacancies and the Ohio Trust Code, Nov/Dec 2020

Trust Contest

Foelsch v. Farson, 2020-Ohio-1259, May/ June 2020

Unclaimed funds

McGraw, Unclaimed Funds? Estate Closed? Help Is on the Way! Sept/Oct 2020

Wills and Contests

Brucken, Probate and Contest of Wills, Jan/Feb 2020

Holden v. Holden, 2019-Ohio-5031, Jan/ Feb 2020

Millonig, Should Ohio Adopt the Uniform Electronic Wills Act? March/April 2020

Hochstetler, Where There’s a Will There’s a Way: The Harmless-Error Rule, Interested-Witness Rule, and In re Estate of Shaffer, May/June 2020

Hoffheimer, Lawyer Who Cannot Locate Testators May Not Discard Wills, May/ June 2020

138 K 2021 Thomson Reuters PROBATE LAW JOURNAL OF OHIO JANUARY/FEBRUARY 2021 | VOLUME 31 | ISSUE 3 LEGISLATIVE SCORECARD Keep this Scorecard as a supplement to your 2020 Ohio Probate Code (complete to Sept. 30, 2020) for up-to-date information on probate and trust legislation.

Enacted legislation None now Pending legislation Authorize benefit corporations SB 21 Eff. 3-24-21 See Stautberg and Spievack, Special Delivery: Ohio’s Busi- ness Benefit Corporation has Arrived, 31 PLJO 114 (Jan/ Feb 2021)

Update LLC Act SB Eff. 276 4-12-21 See Graf, Modernization of Ohio LLC Law, 31 PLJO 111 (Jan/Feb 2021)

Proposed legislation sponsored by the Ohio State Bar Assn. Estate Planning, Trust and Probate Law Section Permit waivers of inventories Ohio and accounts BAR of 10- 17-94 See EPTPL Section Report, Waiver of Filing of Inventory and Accounts OSBA Reform Proposal, 28 No. 2 Ohio Prob. L.J. NL 1 (Nov/Dec 2017)

Guardianship estate planning Spring authority 2019* See Thakur, Proposal: Authorizing “Estate Plan- ning” For a Ward by a Guardian, 29 PLJO 141 (May/June 2019) See Thakur, Expanded ‘‘Estate Planning’’ for a Ward by a Guardian (Effective date TBBD), 31 PLJO 117 (Jan/ Feb 2021)

Spousal vehicle transfer Spring 2019*

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See Lanham, EPTPL Section Proposes to Amend RC 2106.13(A), 29 PLJO 152 (May/June 2019) See Lanham, Amended Ohio Revised Code § 2106.13: Reduction in allowance for support applies only if multiple vehicles selected by surviving spouse, 31 PLJO 118 (Jan/Feb 2021)

Creditor rights after lapse of Spring power to withdraw 2019* See Davis, Asset Protection Opportunities expanded by the repeal of Ohio Revised Code Section 5805.06(B)(2), 29 PLJO 147 (May/June 2019); See Davis, Going Bare, or Not: The Repeal of 5805.06(B)(2), 31 PLJO 120 (Jan/Feb 2021) Brucken, Ohio Trust Code Amendments, 29 PLJO 139 (May/June 2019)

Changing nomination of future Spring trustees 2019* See Brucken, Ohio Trust Code Amendments, 29 PLJO 139 (May/June 2019) Brucken, Trustee removal bar is more clearly limited to cur- rently serving trustees, 31 PLJO 123 (Jan/Feb 2021)

Facilitating electronic wills Spring 2020 See Brucken and Gee, Ohio Electronic Wills, 29 PLJO 99 (March/April 2019)

TOD for tangible personal prop- Spring erty 2020 See Harris, Transferring Tangible Personal Property by Beneficiary Designation, 29 PLJO 144 (May/June 2019)

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Clarifying claims presentment Spring procedure 2020 See Weinewuth, Presentment of Claims against Estates: A Practical Proposal for Improvement after Wilson v. Lawrence, 29 PLJO 153 (May/June 2019)

Authorizing postnuptial agree- Spring ments 2020 See Racey and Ferraro, The Postnuptial Agreement Renaissance-Can Ohio Emerge from the Dark Ages? 29 PLJO 195 (July/Aug 2019)

Simplifying procedure on trust Spring termination 2020 See Ramer, Exit in an Orderly Fashion Revisited: A Proposed Statutory Solution for Ohio Irrevocable Trusts, 30 PLJO 149 (March/April 2020)

Correcting disinterment statute Spring 2020 See Millonig, Disinterment vs. Right of Disposition Stat- ute, 30 PLJO 214 (May/June 2020)

Clarifying perpetuities statute Spring 2020 See Culler, Perpetual Confusion: A Modest Proposal to Clear up a Bad RAP, 30 PLJO 266 (July/Aug 2020) *Full text and explanation given in EPTPL Section Report to OSBA Council of Delegates, posted on OSBA website under “About the OSBA/OSBA Leadership/Council of Delegates/Council of Delegates Reports.” For the full text of pending bills and enacted laws, and for bill analyses and fiscal notes of the Legislative Service Commission, see the website of the Ohio General Assembly (legislature.state.oh.us). Information may also be obtained from the West Ohio Legislative Ser- vice, and from Thomson Reuters Customer Service Dept. at 1-800-328-9352.

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Patricia D. Laub, Esq. EDITOR-IN-CHIEF Frost Brown Todd, LLC, Cincinnati Robert M. Brucken, Esq. Retired Partner, Baker & Hostetler LLP, Cleveland Brian C. Layman, Esq. Layman Law Group, LLC, Canton ADVISORY BOARD Angela G. Carlin, Esq. William J. McGraw, III, Esq. Weston Hurd, LLP, Cleveland Dungan & Lefevre LPA, Troy

Richard E. Davis II, Esq. M. Elizabeth Monihan, Esq. Krugliak, Wilkins, Griffiths & Dougherty Co., LPA, Schneider Smeltz Spieth Bell LLP, Cleveland Canton

John F. Furniss, Esq. Karen M. Moore, Esq. Vorys, Sater, Seymour & Pease, LLP, Columbus Vorys, Sater, Seymour & Pease, LLP, Columbus

William R. Graf, Esq. Edwin P. Morrow III, Esq. Graf Coyne, LPA, Cincinnati Huntington Private Bank Cincinnati, Ohio

Joanne E. Hindel, Esq. Kevin G. Robertson, Esq. Fifth Third Bank, Northeastern Ohio, Cleveland Baker & Hostetler LLP, Cleveland

Daniel J. Hoffheimer, Esq. Lee M. Stautberg, Esq. Taft, Stettinius & Hollister, LLP, Cincinnati Dinsmore & Shohl LLP, Cincinnati

Roy A. Krall, Esq. PUBLICATION EDITOR Cavitch, Familo & Durkin LPA, Akron/Cleveland Carol L. Fetter, J.D.

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