HB 446 — Modify trust and probate laws

360 (iii) A person who resides in a state that has statutes or 361 Sub.

446 Page 14 As ReportedPassed by the House Judiciaryorganized Committeeunder rules that authorize the appointmentlaws of aany nonresidentstate; person who 362 is not related to the testator by consanguinity or affinity, as 363 an executor or trustee when named in, or nominated pursuant to, 364 a will.

360 (iii) A person who resides in a state that has statutes or 361 rules that authorize the appointment of a nonresident person who 362 is not related to the testator by consanguinity or affinity, as 363 an executor or trustee when named in, or nominated pursuant to, 364 a will.

387 To qualify for appointment as an ancillary administrator, 388 a person who is not a resident of this state and who is named or 389 nominated as described in this division, shall be one of the 390 Sub.

446 Page 15 As ReportedPassed by the House Judiciarya Committeeperson who is not a resident of this state and who is named or 389 nominated as described in this division, shall be one of the 390 following:

416 (d) The court may require a nonresident private trust 417 company or family trust company appointed under division (B)(2) 418 (a)(ii) of this section to appoint a resident agent to accept 419 Sub.

446 Page 16 As ReportedPassed by the House Judiciarycompany Committeeor family trust company appointed under division (B)(2) 418 (a)(ii) of this section to appoint a resident agent to accept 419 service of process, notices, and other documents.

445 (E) Any fiduciary, in order to assist in the carrying out 446 of the fiduciary's fiduciary duties, may employ agents who are 447 Sub.

446 Page 17 As ReportedPassed by the House Judiciary(E) CommitteeAny fiduciary, in order to assist in the carrying out 446 of the fiduciary's fiduciary duties, may employ agents who are 447 not residents of the county or of this state.

463 (C) If there are no persons entitled to administration, if 464 they are for any reason unsuitable for the discharge of the 465 trust, or if without sufficient cause they neglect to apply 466 within a reasonable time for the administration of the estate, 467 their right to priority shall be lost, and the court shall 468 commit the administration to some suitable person who is a 469 resident of the statefulfills the residency requirements under 470 section 2109.21 of the Revised Code, or to the attorney general 471 or the attorney general's designee, if the department of 472 medicaid is seeking to recover the costs of medicaid services 473 from the deceased pursuant to section 5162.21 or 5162.211 of the 474 RevisedSub. Code.

The person granted administration may be a 475 creditor of the estate.

476 Sub.

446 Page 18 As ReportedPassed by the House JudiciaryRevised CommitteeCode. (D) This section applies to the appointment of an 477 administrator de bonis non.

The person granted administration may be a 475 creditor of the estate.

476 (D) This section applies to the appointment of an 477 administrator de bonis non.

No instrument conveying real property, or 503 any interest in real property, and of record in the office of 504 the county recorder of the county within this state in which 505 that real property is situated shall be considered defective nor 506 shall the validity of that conveyance be affected because of any 507 Sub.

446 Page 19 As ReportedPassed by the House Judiciarythe Committeecounty recorder of the county within this state in which 505 that real property is situated shall be considered defective nor 506 shall the validity of that conveyance be affected because of any 507 of the following:

533 (2) Except as otherwise provided in division (E)(2) of 534 this section, division (E)(1) of this section shall be given 535 retroactive effect to the fullest extent permitted under section 536 Sub.

446 Page 20 As ReportedPassed by the House Judiciary(2) CommitteeExcept as otherwise provided in division (E)(2) of 534 this section, division (E)(1) of this section shall be given 535 retroactive effect to the fullest extent permitted under section 536 of Article II, Ohio Constitution.

560 (2) This section does not apply to any reference in Title 561 LVII of the Revised Code to the Internal Revenue Code as of a 562 date certain specifying the day, month, and year, or to other 563 lawsSub. of the United States as of a date certain specifying the 564 day, month, and year.

565 Sub.

446 Page 21 As ReportedPassed by the House Judiciary Committee (B)(1) For purposes of applying section 5733.04, 5745.01, 566 or 5747.01 of the Revised Code to a taxpayer's taxable year 567 ending after March 15, 2023, and before the effective date, a 568 taxpayer may irrevocably elect to incorporate the provisions of 569 the Internal Revenue Code or other laws of the United States 570as thatof area indate effectcertain forspecifying federal income tax purposes for that 571 taxable year if those provisions differ from the provisions564 572day, that,month, underand divisionyear. (A) of this section, would otherwise apply.

565 (B)(1) For purposes of applying section 5733.04, 5745.01, 566 or 5747.01 of the Revised Code to a taxpayer's taxable year 567 ending after March 15, 2023, and before the effective date, a 568 taxpayer may irrevocably elect to incorporate the provisions of 569 the Internal Revenue Code or other laws of the United States 570 that are in effect for federal income tax purposes for that 571 taxable year if those provisions differ from the provisions 572 that, under division (A) of this section, would otherwise apply.

592 (2)Sub. The Subject to Chapter 5818.

of the Revised Code, the 593 duty of a trustee to act in good faith and in accordance with 594 Sub.

446 Page 22 As ReportedPassed by the House Judiciary(2) CommitteeThe theSubject purposesto ofChapter the5818. trust;

of the Revised Code, the 593 duty of a trustee to act in good faith and in accordance with 594 the purposes of the trust;

620 (10)Sub. The effect of an exculpatory term under section 621 5810.08 of the Revised Code;

622 Sub.

446 Page 23 As ReportedPassed by the House Judiciary(10) CommitteeThe (11)effect Theof rightsan underexculpatory sectionsterm 5810.10under tosection 5810.13621 5810.08 of the 623 Revised CodeCode; of a person other than a trustee or beneficiary;

622 (11) The rights under sections 5810.10 to 5810.13 of the 623 Revised Code of a person other than a trustee or beneficiary;

A waiver or modification made under this 647 division shall be effective for so long as the beneficiary 648 surrogate or surrogates, or their successor or successors 649 designatedSub. in accordance with the terms of the trust instrument, 650 act in that capacity.

651 Sub.

446 Page 24 As ReportedPassed by the House Judiciarydesignated Committeein (D)accordance Exceptwith as provided under divisions (B) and (C) of this 652 section, it is the policyterms of this state to give maximum effect 653 to the principletrust ofinstrument, freedom650 ofact dispositionin andthat tocapacity. the 654 enforceability of governing instruments.

651 (D) Except as provided under divisions (B) and (C) of this 652 section, it is the policy of this state to give maximum effect 653 to the principle of freedom of disposition and to the 654 enforceability of governing instruments.

675 (D) The trustee shall notify the current beneficiaries of 676 a proposed transfer of a trust's principal place of 677 administration not less than sixty days before initiating the 678 transfer.Sub.

The notice of a proposed transfer shall include all of 679 the following:

680 Sub.

446 Page 25 As ReportedPassed by the House Judiciarytransfer. Committee (1) The name of the jurisdiction to which the principal 681 place of administration is to be transferred;

The notice of a proposed transfer shall include all of 679 the following:

680 (1) The name of the jurisdiction to which the principal 681 place of administration is to be transferred;

706 (3) Upon the revocation or amendment of the trust by less 707 than all of the settlors, the trustee shall promptly notify the 708 Sub.

446 Page 26 As ReportedPassed by the House Judiciary(3) CommitteeUpon the revocation or amendment of the trust by less 707 than all of the settlors, the trustee shall promptly notify the 708 other settlors of the revocation or amendment.

732 (G) A trustee who does not know that a trust has been 733 revoked or amended is not liable to the settlor or settlor's 734 successors in interest for distributions made and other actions 735 takenSub. on the assumption that the trust had not been amended or 736 revoked.

737 Sub.

446 Page 27 As ReportedPassed by the House Judiciarytaken Committeeon Sec.the assumption that the trust had not been amended or 736 revoked.

737 Sec.

763 (1) "Protector" has the same meaning as in section 5818.01 764 ofSub. the Revised Code.

765 (2) "Internal Revenue Code" has the same meaning as in 766 Sub.

446 Page 28 As ReportedPassed by the House Judiciary Committee section 5747.01 of the Revised Code.

765 (2) "Internal Revenue Code" has the same meaning as in 766 section 5747.01 of the Revised Code.

790 (3) Applying this section would be the only trigger that 791 would result in any trust, or portion thereof, as treated as 792 being owned by a person under sections 671 to 679 of the 793 InternalSub. Revenue Code or any similar federal, state, or other 794 tax law.

This division does not prohibit reimbursement in a 795 Sub.

446 Page 29 As ReportedPassed by the House JudiciaryInternal CommitteeRevenue subsequentCode yearor providedany thatsimilar thefederal, reimbursementstate, relatesor toother a794 796tax yearlaw. in which the person was treated as an owner under sections 797 to 679 of the Internal Revenue Code.

This division does not prohibit reimbursement in a 795 subsequent year provided that the reimbursement relates to a 796 year in which the person was treated as an owner under sections 797 to 679 of the Internal Revenue Code.

819 (1)(1)(a) "Beneficiary" means includes the beneficiary of 820 a primary gift, the beneficiary of a future interest, and 821 includes a class member if the future interest is in the form of 822 aSub. class gift.

823 (b) Except as otherwise provided in this division, the 824 Sub.

446 Page 30 As ReportedPassed by the House Judiciarya Committeeclass amendmentgift. to division (A)(1)(a) of this section in this act 825 shall be given retroactive effect to the fullest extent 826 permitted under Ohio Constitution, Article II, Section 28.

823 (b) Except as otherwise provided in this division, the 824 amendment to division (A)(1)(a) of this section in this act 825 shall be given retroactive effect to the fullest extent 826 permitted under Ohio Constitution, Article II, Section 28.

849 (6) "Future interest under the terms of a trust" means a 850 future interest that was created by a transfer creating a trust 851 or a transfer to an existing trust, or by an exercise of a power 852 of appointment to an existing trust, that directs the 853 Sub.

446 Page 31 As ReportedPassed by the House Judiciaryor Committeea transfer to an existing trust, or by an exercise of a power 852 of appointment to an existing trust, that directs the 853 continuance of an existing trust, designates a beneficiary of an 854 existing trust, or creates a trust.

879 (B)(1)(a) As used in "surviving descendants" in divisions 880 (B)(2)(b)(i) and (ii) of this section, "descendants" means the 881 Sub.

446 Page 32 As ReportedPassed by the House Judiciary(B)(1)(a) CommitteeAs used in "surviving descendants" in divisions 880 (B)(2)(b)(i) and (ii) of this section, "descendants" means the 881 descendants of a deceased beneficiary or class member who would 882 take under a class gift created in the trust.

907 (ii) If the future interest is in the form of a class 908 gift, other than a future interest to "issue," "descendants," 909 "heirs of the body," "heirs," "next of kin," "relatives," or 910 Sub.

446 Page 33 As ReportedPassed by the House Judiciarygift, Committeeother than a future interest to "issue," "descendants," 909 "heirs of the body," "heirs," "next of kin," "relatives," or 910 "family," or a class described by language of similar import 911 that includes more than one generation, a substitute gift is 912 created in the surviving descendants of the deceased beneficiary 913 or beneficiaries.

938 (2) Subject to division (C)(1) of this section, attaching 939 words of survivorship to a future interest under the terms of a 940 Sub.

446 Page 34 As ReportedPassed by the House Judiciary(2) CommitteeSubject to division (C)(1) of this section, attaching 939 words of survivorship to a future interest under the terms of a 940 trust, such as "for my spouse for life, then to my children who 941 survive my spouse" or "for my spouse for life, then to my then- 942 living children" is, in the absence of other language in the 943 trust instrument or other evidence to the contrary, a sufficient 944 indication of an intent to negate the application of division 945 (B)(2)(b) of this section.

965 (1) If the future interest was created by the exercise of 966 a power of appointment, the property passes under the donor's 967 gift-in-default clause, if any, which clause is treated as 968 creatingSub. a future interest under the terms of a trust.

969 (2) If no taker is produced under division (D)(1) of this 970 Sub.

446 Page 35 As ReportedPassed by the House Judiciarycreating Committee section and the trust was created in a nonresiduaryfuture deviseinterest inunder 971 the transferor'sterms willof or in a codiciltrust. to the transferor's will, 972 the property passes under the residuary clause in the 973 transferor's will.

969 (2) If no taker is produced under division (D)(1) of this 970 section and the trust was created in a nonresiduary devise in 971 the transferor's will or in a codicil to the transferor's will, 972 the property passes under the residuary clause in the 973 transferor's will.

This section does not 996 apply to any trust that was irrevocable before March 22, 2012, 997 even if property was added to the trust on or after March 22, 998 2012.Sub.

999 Sec.

5810.08.

A (A) As used in this section, "trust 1000 Sub.

446 Page 36 As ReportedPassed by the House Judiciary2012. Committee directive" has the same meaning as in section 5818.01 of the 1001 Revised Code.

999 Sec.

5810.08.

A (A) As used in this section, "trust 1000 directive" has the same meaning as in section 5818.01 of the 1001 Revised Code.

1024 (1) The remaining one-half of the disbursements described 1025 inSub. divisions (A) and (B) of section 5812.42 of the Revised Code;

1026 (2) All of the trustee's compensation calculated on 1027 Sub.

446 Page 37 As ReportedPassed by the House Judiciaryin Committeedivisions principal(A) as a fee for acceptance, distribution, or termination, 1028 and disbursements(B) madeof tosection prepare5812.42 propertyof forthe sale;Revised Code;

1026 (2) All of the trustee's compensation calculated on 1027 principal as a fee for acceptance, distribution, or termination, 1028 and disbursements made to prepare property for sale;

1048 (8) Disbursements related to payments to a taxing 1049 authority or reimbursement to a person being treated as the 1050 owner under sections 671 to 679 of the Internal Revenue Code, as 1051 defined in section 5747.01 of the Revised Code, or any similar 1052 federal, state, or other tax law, for any amount of the person's 1053 income tax liability attributable to the inclusion of the 1054 trust'sSub. income, capital gains, deductions, or credits in the 1055 calculation of the person's taxable income.

1056 Sub.

446 Page 38 As ReportedPassed by the House Judiciarytrust's Committeeincome, (B)capital Ifgains, adeductions, principalor assetcredits isin encumbered with an obligation 1057 that requires income from that asset to be paid directly to the 10581055 creditor,calculation the trustee shall transfer from principal to income an 1059 amount equal to the income paid to the creditor in reduction of 1060 the principalperson's balancetaxable ofincome. the obligation.

1056 (B) If a principal asset is encumbered with an obligation 1057 that requires income from that asset to be paid directly to the 1058 creditor, the trustee shall transfer from principal to income an 1059 amount equal to the income paid to the creditor in reduction of 1060 the principal balance of the obligation.

1083 (5)Sub. Employing agents in connection with the fiduciary's 1084 administrative duties;

1085 Sub.

446 Page 39 As ReportedPassed by the House Judiciary(5) CommitteeEmploying (6)agents Takingin custodyconnection ofwith orthe storingfiduciary's trust1084 property;administrative duties;

1085 (6) Taking custody of or storing trust property;

1105 (D) Any administrative fiduciary as described in division 1106 (B) of this section or any excluded fiduciary as described in 1107 division (C) of this section is relieved from any obligation to 1108 perform investment reviews and make recommendations with respect 1109 to any investments to the extent the grantorsettlor, an advisory 1110 or investment committee, or one or more other persons have 1111 authority to direct the acquisition, disposition, or retention 1112 ofSub. any investment.

1113 (E)(D) This section does not apply to the extent that the 1114 Sub.

446 Page 40 As ReportedPassed by the House Judiciary Committee instrument under which an administrative fiduciary as described 1115 in division (B) of thisany sectioninvestment. or an excluded fiduciary as 1116 described in division (C) of this section contains provisions 1117 that are inconsistent with this section.

1113 (E)(D) This section does not apply to the extent that the 1114 instrument under which an administrative fiduciary as described 1115 in division (B) of this section or an excluded fiduciary as 1116 described in division (C) of this section contains provisions 1117 that are inconsistent with this section.

1139 (3)Sub. "Breach of trust" does not encompass or include any 1140 act or omission of a protector if the act or omission is allowed 1141 by either of the following:

1142 Sub.

446 Page 41 As ReportedPassed by the House Judiciary(3) Committee"Breach (a)of Thetrust" termsdoes ofnot aencompass trust,or exceptinclude whereany those1140 termsact areor 1143omission expresslyof prohibiteda byprotector thisif chapterthe act or otheromission applicableis lawsallowed of1141 1144by thiseither state;of the following:

1142 (a) The terms of a trust, except where those terms are 1143 expressly prohibited by this chapter or other applicable laws of 1144 this state;

1165 (2) Subject to section 5818.36 of the Revised Code, remove 1166 another trust officeholder from a trust office, or appoint 1167 anotherSub. person to a trust office;

1168 (3) Modify or amend the trust instrument, including 1169 amendments that do any of the following:

1170 Sub.

446 Page 42 As ReportedPassed by the House Judiciaryanother Committeeperson (a)to Achievea favorabletrust taxoffice; treatment;

1168 (3) Modify or amend the trust instrument, including 1169 amendments that do any of the following:

1170 (a) Achieve favorable tax treatment;

1192 (12) Otherwise direct the administration of a trust or the 1193 conductSub. of a trust officeholder.

1194 (G) "Protector" means a trust officeholder, other than a 1195 trustee, that holds a power of direction pursuant to the terms 1196 of a trust, regardless of whether the terms of a trust refer to 1197 Sub.

446 Page 43 As ReportedPassed by the House Judiciaryconduct Committee the person holding a power of direction as a "protector,"trust 1198officeholder. "adviser," "director," or some other name or title.

1194 (G) "Protector" means a trust officeholder, other than a 1195 trustee, that holds a power of direction pursuant to the terms 1196 of a trust, regardless of whether the terms of a trust refer to 1197 the person holding a power of direction as a "protector," 1198 "adviser," "director," or some other name or title.

1221 (4)Sub. "Trust office" does not include the position or role 1222 of beneficiary surrogate, as defined in section 5801.01 of the 1223 Revised Code, unless the trust instrument expressly provides 1224 otherwise.

1225 Sub.

446 Page 44 As ReportedPassed by the House Judiciary(4) Committee"Trust (K)office" "Trustdoes officeholder"not meansinclude anythe personposition whoor holdsrole a1222 1226of beneficiary surrogate, as defined in section 5801.01 of the 1223 Revised Code, unless the trust office.instrument expressly provides 1224 otherwise.

1225 (K) "Trust officeholder" means any person who holds a 1226 trust office.

1247 (2) The terms of a trust may provide that the laws of this 1248 state wholly or partially govern some of the rights, powers, 1249 discretion, duties, or liabilities of a protector while the laws 1250 ofSub. one or more jurisdictions other than this state govern all 1251 other rights, powers, discretion, duties, or liabilities of a 1252 protector.

1253 Sec.

5818.03.

Any person who is, within the meaning of the 1254 Sub.

446 Page 45 As ReportedPassed by the House Judiciaryof Committeeone Ohioor legacymore trustjurisdictions act,other anthan "advisor"this isstate consideredgovern aall protector1251 inother 1255rights, connectionpowers, withdiscretion, theduties, legacyor trustliabilities for the purposes of thisa 12561252 chapter.protector.

1253 Sec.

5818.03.

Any person who is, within the meaning of the 1254 Ohio legacy trust act, an "advisor" is considered a protector in 1255 connection with the legacy trust for the purposes of this 1256 chapter.

1279 (E)Sub. A person that is a transferor to a legacy trust, 1280 within the meaning of the Ohio legacy trust act, may serve as an 1281 advisor to that legacy trust only to the extent authorized by 1282 division (A) of section 5816.11 of the Revised Code.

1283 Sub.

446 Page 46 As ReportedPassed by the House Judiciary(E) CommitteeA Sec.person that is a transferor to a legacy trust, 1280 within the meaning of the Ohio legacy trust act, may serve as an 1281 advisor to that legacy trust only to the extent authorized by 1282 division (A) of section 5816.11 of the Revised Code.

1283 Sec.

Subject to section 5818.13 of the Revised 1307 Code, the rights, powers, discretion, duties, and liabilities of 1308 aSub. protector may be varied, allocated, and limited among one or 1309 more protectors as follows:

1310 (A) The terms of a trust may do either or both of the 1311 following:

1312 Sub.

446 Page 47 As ReportedPassed by the House Judiciary Committee (1) Provide that a protector ismay abe fiduciaryvaried, inallocated, connection 1313 with some matters and notlimited aamong fiduciaryone inor connection1309 withmore otherprotectors 1314as matters;follows:

1310 (A) The terms of a trust may do either or both of the 1311 following:

1312 (1) Provide that a protector is a fiduciary in connection 1313 with some matters and not a fiduciary in connection with other 1314 matters;

1334 (A) If a protector is acting in a fiduciary capacity, then 1335 theSub. protector may exercise any power of direction to the same 1336 extent as, and subject to the same fiduciary obligations and 1337 limitations applicable to, a trustee of the trust if the trustee 1338 is authorized to exercise the same power.

1339 (B) If a protector is not acting in a fiduciary capacity, 1340 Sub.

446 Page 48 As ReportedPassed by the House Judiciarythe Committeeprotector then,may exceptexercise asany otherwisepower providedof bydirection to the termssame of1336 theextent trust,as, 1341and subject to the protectorsame mayfiduciary exerciseobligations anyand protector's1337 powerlimitations inapplicable to, a trustee of the 1342trust protector'sif solethe andtrustee absolute1338 discretion.is authorized to exercise the same power.

1339 (B) If a protector is not acting in a fiduciary capacity, 1340 then, except as otherwise provided by the terms of the trust, 1341 the protector may exercise any protector's power in the 1342 protector's sole and absolute discretion.

(A)(1) If a protector holds a power of 1363 directionSub. in a fiduciary capacity, then the protector may be 1364 found liable for breach of trust due to the protector's exercise 1365 or nonexercise of that power of direction whenever the protector 1366 has committed such a breach.

1367 (2) If a protector is found liable for breach of trust, 1368 Sub.

446 Page 49 As ReportedPassed by the House Judiciarydirection Committeein a fiduciary capacity, then the protector'sprotector liabilitymay shall be 1364 found liable for breach of trust due to the sameprotector's exercise 1365 or nonexercise of that wouldpower 1369of attachdirection underwhenever the followingprotector circumstances:1366 has committed such a breach.

1367 (2) If a protector is found liable for breach of trust, 1368 then the protector's liability shall be the same that would 1369 attach under the following circumstances:

1392 (D)Sub. The terms of a trust may impose duties or liabilities 1393 on a protector in addition to the duties and liabilities imposed 1394 by this chapter.

1395 Sec.

5818.13.

(A) Whenever a protector is not acting as a 1396 Sub.

446 Page 50 As ReportedPassed by the House Judiciary(D) CommitteeThe fiduciary, the terms of a trust may vary,impose limit, restrict, or 1397 eliminate the duties or liabilityliabilities of1393 on a protector,protector exceptin thataddition 1398to the termsduties ofand aliabilities trustimposed shall1394 notby dothis eitherchapter. of the following:

1395 Sec.

5818.13.

(A) Whenever a protector is not acting as a 1396 fiduciary, the terms of a trust may vary, limit, restrict, or 1397 eliminate the duties or liability of a protector, except that 1398 the terms of a trust shall not do either of the following:

1418 (D) In the event of any conflict between this section and 1419 any other provision of this chapter, this section governs and 1420 controls.Sub.

1421 Sec.

5818.14.

(A) In any action against a protector, the 1422 protector may assert any defense available at law or equity, 1423 including any defense available under this chapter or under the 1424 Sub.

446 Page 51 As ReportedPassed by the House Judiciarycontrols. Committee terms of a trust.

1421 Sec.

5818.14.

(A) In any action against a protector, the 1422 protector may assert any defense available at law or equity, 1423 including any defense available under this chapter or under the 1424 terms of a trust.

1447 (3) A trust officeholder may ask a protector to clarify a 1448 trustSub. directive.

1449 (4) A trust officeholder may require a protector to place 1450 a verbal trust directive in writing before the trust 1451 officeholder implements or complies with the trust directive.

1452 Sub.

446 Page 52 As ReportedPassed by the House Judiciary Committee (5) A trust officeholder has no liability to any person 1453 for implementing or complying with a trust directive.

1449 (4) A trust officeholder may require a protector to place 1450 a verbal trust directive in writing before the trust 1451 officeholder implements or complies with the trust directive.

1452 (5) A trust officeholder has no liability to any person 1453 for implementing or complying with a trust directive.

1474 (G) In the event of any conflict between this section and 1475 anySub. other provision of this chapter, this section governs and 1476 controls.

1477 Sec.

5818.16.

A trust officeholder may petition a court of 1478 competent jurisdiction for instructions regarding the trust 1479 officeholder's duties under section 5818.15 of the Revised Code.

1480 Sub.

446 Page 53 As ReportedPassed by the House Judiciaryany Committeeother Theprovision rightof conferredthis bychapter, this section isgoverns in addition to the 1481 trust officeholder's rights under section 5818.15 of the Revised 1482 Code to seek clarification of a trust directive from a protector 1483 and require1476 acontrols. trust directive to be in writing, and the trust 1484 officeholder's right under section 5818.23 of the Revised Code 1485 to ask a person to clarify the capacity in which that person is 1486 acting.

1477 Sec.

5818.16.

A trust officeholder may petition a court of 1478 competent jurisdiction for instructions regarding the trust 1479 officeholder's duties under section 5818.15 of the Revised Code.

1480 The right conferred by this section is in addition to the 1481 trust officeholder's rights under section 5818.15 of the Revised 1482 Code to seek clarification of a trust directive from a protector 1483 and require a trust directive to be in writing, and the trust 1484 officeholder's right under section 5818.23 of the Revised Code 1485 to ask a person to clarify the capacity in which that person is 1486 acting.

1502 (c) Uphold the validity and enforceability of trust 1503 directives.Sub.

1504 (2) Without limiting the generality of the foregoing, the 1505 term "power of direction" shall be liberally and broadly 1506 interpreted, construed, and applied.

1507 (C) The rule of the common law that statutes in derogation 1508 Sub.

446 Page 54 As ReportedPassed by the House Judiciarydirectives. Committee of common law are to be strictly construed does not apply to 1509 this chapter.

1504 (2) Without limiting the generality of the foregoing, the 1505 term "power of direction" shall be liberally and broadly 1506 interpreted, construed, and applied.

1507 (C) The rule of the common law that statutes in derogation 1508 of common law are to be strictly construed does not apply to 1509 this chapter.

1531 (b)Sub. Any duty that the first protector does not share with 1532 the other protector.

1533 (3) Division (B)(2) of this section does not apply if the 1534 first protector's failure to provide the information to the 1535 other protector would constitute willful misconduct by the first 1536 Sub.

446 Page 55 As ReportedPassed by the House Judiciary(b) CommitteeAny duty that the first protector does not share with 1532 the other protector.

1533 (3) Division (B)(2) of this section does not apply if the 1534 first protector's failure to provide the information to the 1535 other protector would constitute willful misconduct by the first 1536 protector.

1558 (3)Sub. Inform another protector of the first protector's 1559 communications with beneficiaries regarding the other 1560 protector's performance in or suitability for trust office;

1561 (4) Inform a trustee or another protector of matters that 1562 were communicated in confidence to the first protector, or that 1563 Sub.

446 Page 56 As ReportedPassed by the House Judiciary(3) CommitteeInform another protector of the first protectorprotector's reasonably1559 believescommunications werewith communicatedbeneficiaries inregarding 1564the confidenceother to1560 theprotector's firstperformance protector,in byor asuitability beneficiary;for trust office;

1561 (4) Inform a trustee or another protector of matters that 1562 were communicated in confidence to the first protector, or that 1563 the first protector reasonably believes were communicated in 1564 confidence to the first protector, by a beneficiary;

1585 (B) A trustee that acts in reliance on information 1586 provided by a protector is not liable for any damage or loss 1587 directlySub. or indirectly caused by such reliance, except to the 1588 extent to that the reliance constitutes willful misconduct by 1589 the trustee.

1590 (C) The terms of a trust may expressly impose on trustees 1591 and protectors duties and liabilities greater than those imposed 1592 Sub.

446 Page 57 As ReportedPassed by the House Judiciarydirectly Committeeor indirectly caused by divisionssuch (A)reliance, andexcept (B)to ofthe this1588 section.extent to that the reliance constitutes willful misconduct by 1589 the trustee.

1590 (C) The terms of a trust may expressly impose on trustees 1591 and protectors duties and liabilities greater than those imposed 1592 by divisions (A) and (B) of this section.

1614 (3)Sub. The terms of a trust grant the person the capacity 1615 specified in the document.

1616 (C) If a person's capacity as settlor, beneficiary, or 1617 protector is unclear after applying the factors provided in 1618 divisions (A) and (B) of this section, then a court may consider 1619 Sub.

446 Page 58 As ReportedPassed by the House Judiciary(3) CommitteeThe anyterms otherof factsa ortrust circumstancesgrant thatthe mayperson be relevant to 1620 determining the capacity in1615 whichspecified in the persondocument. is acting.

1616 (C) If a person's capacity as settlor, beneficiary, or 1617 protector is unclear after applying the factors provided in 1618 divisions (A) and (B) of this section, then a court may consider 1619 any other facts or circumstances that may be relevant to 1620 determining the capacity in which the person is acting.

(A) No beneficiary shall commence a 1638 proceeding against a protector for breach of trust, based on 1639 acts or omissions undertaken by the protector in a fiduciary 1640 capacity, more than two years after the date that a beneficiary, 1641 a representative of a beneficiary, or a beneficiary surrogate is 1642 sent a report or accounting that adequately discloses the 1643 existence of a potential claim for breach of trust and informs 1644 theSub. beneficiary, representative, or surrogate of the time 1645 allowed for commencing a proceeding against the protector.

1646 (B) If a claim is brought against a protector regarding 1647 acts or omissions undertaken by the protector in a nonfiduciary 1648 capacity, or for causes of action other than breach of trust, 1649 Sub.

446 Page 59 As ReportedPassed by the House Judiciary Committee then the actionbeneficiary, mustrepresentative, beor commencedsurrogate withinof the sametime limitation1645 1650allowed periodfor thatcommencing woulda otherwiseproceeding applyagainst tothe thatprotector. claim.

1646 (B) If a claim is brought against a protector regarding 1647 acts or omissions undertaken by the protector in a nonfiduciary 1648 capacity, or for causes of action other than breach of trust, 1649 then the action must be commenced within the same limitation 1650 period that would otherwise apply to that claim.

1671 (1) Seek clarification of a trust directive from a 1672 protectorSub. or request that the protector put the trust directive 1673 in writing pursuant to section 5818.15 of the Revised Code;

1674 (2) Seek judicial instructions pursuant to section 5818.16 1675 of the Revised Code;

1676 (3) Ask a person to clarify the capacity in which such 1677 Sub.

446 Page 60 As ReportedPassed by the House Judiciaryprotector Committeeor personrequest isthat actingthe protector put the trust directive 1673 in writing pursuant to section 5818.235818.15 of the Revised 1678Code; Code.

1674 (2) Seek judicial instructions pursuant to section 5818.16 1675 of the Revised Code;

1676 (3) Ask a person to clarify the capacity in which such 1677 person is acting pursuant to section 5818.23 of the Revised 1678 Code.

1701 (B)Sub. The court may specify the amount of a bond, its 1702 liabilities, and whether sureties are necessary.

The court may 1703 modify or terminate a bond at any time.

1704 (C) A regulated financial-service institution or licensed 1705 trust company qualified to do trust business in this state need 1706 Sub.

446 Page 61 As ReportedPassed by the House Judiciary(B) CommitteeThe notcourt givemay bond.specify the amount of a bond, its 1702 liabilities, and whether sureties are necessary.

The court may 1703 modify or terminate a bond at any time.

1704 (C) A regulated financial-service institution or licensed 1705 trust company qualified to do trust business in this state need 1706 not give bond.

1727 (C) Any liability of a resigning protector or of any 1728 suretiesSub. on the protector's bond for acts or omissions of the 1729 protector is not discharged or affected by the protector's 1730 resignation.

1731 Sec.

5818.32.

Subject to the terms of a trust instrument, 1732 all of the following apply:

1733 Sub.

446 Page 62 As ReportedPassed by the House Judiciarysureties Committeeon (A)the Theprotector's settlor,bond afor trustee,acts or aomissions beneficiaryof may request 1734 the court1729 toprotector removeis anot protector,discharged or theaffected courtby maythe removeprotector's a1730 1735resignation. protector on its own initiative.

1731 Sec.

5818.32.

Subject to the terms of a trust instrument, 1732 all of the following apply:

1733 (A) The settlor, a trustee, or a beneficiary may request 1734 the court to remove a protector, or the court may remove a 1735 protector on its own initiative.

1756 (1)Sub. Compel the protector to perform the protector's 1757 duties;

1758 (2) Enjoin the protector from engaging in acts of willful 1759 misconduct or self-dealing;

1760 Sub.

446 Page 63 As ReportedPassed by the House Judiciary(1) CommitteeCompel (3) If the protector isto aperform fiduciary, enjoin the protectorprotector's 17611757 fromduties; committing a breach of trust;

1758 (2) Enjoin the protector from engaging in acts of willful 1759 misconduct or self-dealing;

1760 (3) If the protector is a fiduciary, enjoin the protector 1761 from committing a breach of trust;

1783 (B) If the terms of a trust specify the protector's 1784 compensation, the protector is entitled to be compensated as 1785 specified, but the court may allow more or less compensation if 1786 the duties of the protector are substantially different from 1787 Sub.

446 Page 64 As ReportedPassed by the House Judiciary(B) CommitteeIf the terms of a trust specify the protector's 1784 compensation, the protector is entitled to be compensated as 1785 specified, but the court may allow more or less compensation if 1786 the duties of the protector are substantially different from 1787 those contemplated when the trust was created or the 1788 compensation specified by the terms of the trust would be 1789 unreasonably low or high.

1811 (2) Any person, including an attorney, who serves as a 1812 protectorSub. is entitled to receive reasonable compensation for 1813 serving as protector.

1814 (3) Compensation payable to the protector is in addition 1815 Sub.

446 Page 65 As ReportedPassed by the House Judiciaryprotector Committeeis toentitled any attorney's fees payable to thereceive attorneyreasonable thatcompensation prepared, or 1816 supervised the execution of, the trust instrument, or to that 1817 attorney's firm, for legal1813 servicesserving renderedas to the protector.

1814 (3) Compensation payable to the protector is in addition 1815 to any attorney's fees payable to the attorney that prepared, or 1816 supervised the execution of, the trust instrument, or to that 1817 attorney's firm, for legal services rendered to the protector.

1837 (d) A person related to the individual or the individual's 1838 spouse by consanguinity or affinity, with whom the individual 1839 maintainsSub. a close, familial relationship;

1840 (e) A spouse of a person described in division (C)(2)(d) 1841 of this section;

1842 Sub.

446 Page 66 As ReportedPassed by the House Judiciarymaintains Committeea (f)close, Afamilial personrelationship; who cohabitates with the individual;

1840 (e) A spouse of a person described in division (C)(2)(d) 1841 of this section;

1842 (f) A person who cohabitates with the individual;

The written statement may be executed 1865 before or after the execution of the trust appointing the 1866 attorney that prepared, or supervised the execution of, the 1867 trustSub. instrument, or a person related to that attorney.

1868 (B) The written statement executed under division (A) of 1869 this section must be in substantially the following form:

1870 Sub.

446 Page 67 As ReportedPassed by the House Judiciarytrust Committeeinstrument, "I,or ________,a declareperson that:related to that attorney.

1868 (B) The written statement executed under division (A) of 1869 this section must be in substantially the following form:

1870 "I, ________, declare that:

_________" 1894 (C)Sub. The failure to obtain a written statement under 1895 division (B) of this section does not affect the validity of a 1896 trust instrument.

1897 Sub.

446 Page 68 As ReportedPassed by the House Judiciary(C) CommitteeThe Sec.failure to obtain a written statement under 1895 division (B) of this section does not affect the validity of a 1896 trust instrument.

1897 Sec.