As Introduced

Document Sample
As Introduced Powered By Docstoc
					                                   As Introduced

     126th General Assembly
         Regular Session                              H. (or S.) B. No. __
            2005-2006


            Representative (or Senator) _________________


                                        A BILL

To adopt the Ohio Uniform Trust Code to codify Ohio trust law.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:


Section 1 (the Ohio Uniform Trust Code): That Chapters 5801 through 5811 of the
Revised Code be adopted as the Ohio Uniform Trust Code, to read as follows:

                         [Insert the Ohio Uniform Trust Code]


Section 2 (sections of the Revised Code that are repealed and replaced by provisions of
the Ohio Uniform Trust Code): That the following sections of the Revised Code be
repealed:

       (1) RC §1335.01 [Deeds made in trust for grantor; reservations permitted; legal
and equitable titles not merging; Division (A): replaced by new Chapter 5806 and by
§5805(A)(1). Division (B): moved to §5804.02(D). Division (C): moved to §5804.02(E)].

      (2) RC §1339.14 [Replacement of trustee in military service; covered by
§5807.04];

        (3) RC §1339.52 through §1339.61 [Ohio Uniform Prudent Investor Act; moved
to Chapter 5809, except that RC §§1339.53(C), 1339.55, and 1339.57 were not moved to
Chapter 5809, because they are included in §§5808.06, 5808.02 and .03, and 5808.05,
respectively];

       (4) RC §1339.66 [Termination of uneconomic trust; replaced by §5804.14];

       (5) RC §1339.67 [Consolidation or division of trusts; replaced by §5804.17];

       (6) RC §1339.69 [Reports of inter vivos trustees; replaced by §5808.13];
        (7) RC §1340.21 through §1340.23 [Tax sensitive discretionary powers of
trustee/beneficiary; replaced by §5808.14(B), (C), and (D)];

      (8) RC §2109.62(D) [Virtual representation provisions for termination of an
uneconomic testamentary trust; covered by Chapter 5803]. and

      (9) RC §2305.121 [Limitation on action contesting validity of revocable trust;
moved to §5806.04].


Section 3 (statement of legislative intent to preserve favorable tax treatment under
existing Ohio law; not to be codified): In enacting section 5808.14(B) of the Revised
Code, the General Assembly hereby declares its intent to codify certain fiduciary and
trust law principles, previously codified in section 1340.22 of the Revised Code, relating
to a fiduciary’s conflict of interests and, in general, to provide for the exercise of certain
discretionary powers to distribute either principal or income to a beneficiary by a
beneficially interested fiduciary for his own benefit to the extent of an ascertainable
standard.


Section 4 (all remaining sections of Chapters 1339 and 1340, except section 1339.65,
will be repealed and reenacted without change in new Title 58; section 1339.65 will be
repealed and reenacted with revisions, as set forth on Appendix A, in new Title 58): That
the following sections of the Revised Code be repealed:

       (1) RC §1339.01 [Issuers of securities and holders of record; to be reenacted
without change and moved to new §5815.01];

        (2) RC §1339.02 [Issuers of securities may treat holders of record as competent;
to be reenacted without change and moved to new §5815.02];

       (3) RC §1339.03 through §1339.13 [Fiduciary Bank Accounts (Uniform
Fiduciary Act); to be reenacted without change and moved to new §§5815.03 through ?];

       (4) RC §1339.15 through §1339.17 [Powers of Appointment; to be reenacted
without change and moved to new §§5815.? through 5815.?];

       (5) RC §1339.18 [Fiduciary duties of attorney of fiduciary; to be reenacted
without change and moved to new §5815.?];

       (4) RC §1339.31 through §1339.39 [The Uniform Transfers to Minors Act; to be
reenacted without change and moved to new Chapter 5814];

       (5) RC §1339.41 through §1339.51 [Inter Vivos or Testamentary Trusts; to be
reenacted without change and moved to new §§5815.? through 5815.?];
       (6) RC §1339.62 [Spouse granted power of appointment or nominated as trustee;
termination of marriage as revocation; to be reenacted without change and moved to new
§5815.?];

        (7) RC §1339.621 [Revocation of spouse's power of attorney upon divorce,
dissolution, or separation; to be reenacted without change and moved to new §5815.?];

       (8) RC §1339.63 [Spouse designated as beneficiary of death benefits; effect of
termination of marriage; to be reenacted without change and moved to new §5815.?];

       (9) RC § 1339.64 [Personal property held jointly by spouses; effect of termination
of marriage; to be reenacted without change and moved to new §5815.?];

      (10) RC §1339.65 [Liability when acting as general partner; disclosures; to be
amended to read as set forth on the attached Appendix A, and moved to new §5815.?];

       (11) RC §1339.68 [Disclaimers of successions to property; to be reenacted
without change and moved to new §5815.?]; and

       (12) RC §1339.71 through 1339.78 [Consignment of Art Works to Dealers; to be
reenacted without change and moved to new §§5815.? through 5815.?].

       (13) RC §1340.31 through §1340.37 [The Institutional Trust Funds Act; to be
reenacted without change and moved to new Chapter 5813]; and

       (14) RC §1340.40 through §1340.91 [The Uniform Principal and Income Act; to
be reenacted without change and moved to new Chapter 5812].


Section 5. That section 2305.22 and new section 2109.69 of the Revised Code be enacted
to read as follows:

2305.22 Exceptions

Sections 2305.03 to 2305.21, 1302.98, and 1304.35 of the Revised Code, respecting lapse
of time as a bar to suit, do not apply in the case of an action by a vendee of real property,
in possession thereof, to obtain a conveyance of it.


2109.69 Applicability of Ohio Uniform Trust Code

The Ohio Uniform Trust Code, sections 5801.01 to 5811.05 of the Revised Code, applies
also to testamentary trusts, except to the extent that specific provision is made for them in
sections 2109.01 to 2109.69 of the Revised Code or elsewhere in the Revised Code, or to
the extent that it is clearly inapplicable to them. Section 5808.13 of the Revised Code,
which provides for the duties of a trustee to inform and report to the trust’s beneficiaries,
shall apply to testamentary trusts.


Section 6. That section 2305.22 of the Revised Code be repealed.
                                 Appendix A
                          Revisions to RC §1339.65
                      To be Enacted in new Chapter 5815


1339.65 Liability when acting as general partner; disclosures


(A)(1) As used in this division “fiduciary" means any person, association, or corporation,
other than a trustee of a testamentary trust, an assignee or trustee for an insolvent debtor,
or a guardian under Chapter 5905 of the Revised Code, that is appointed by and
accountable to the probate court, and that is acting in a fiduciary capacity for another or
charged with duties in relation to any property, interest, or estate for another's benefit. A
fiduciary also includes an agency under contract with the department of mental
retardation and developmental disabilities for the provision of protective service under
sections 5123.55 to 5123.59 of the Revised Code, when appointed by and accountable to
the probate court as a guardian or trustee for a mentally retarded or developmentally
disabled person.


(2) A fiduciary who enters a contract as fiduciary on or after March 22, 1984 is not
personally liable on that contract, unless the contract otherwise specifies, if the contract is
within the fiduciary's authority and the fiduciary discloses that the contract is being
entered into in his fiduciary capacity. In a contract, the words "fiduciary," or "as
fiduciary," or other words that indicate one's fiduciary capacity, following the name or
signature of a fiduciary shall be sufficient disclosure for purposes of this division.


(B)(1) As used in this division “partnership" includes a partnership composed of only
general partners and a partnership composed of general and limited partners.


(2) Subject to division (D) of this section, an executor or administrator who acquires, in
his fiduciary capacity, a general partnership interest upon the death of a general partner of
a partnership, is not personally liable for any debt, obligation, or liability of the
partnership that arises from his actions, except as provided in this division, as a general
partner, or for any debt, obligation, or liability of the partnership for which he otherwise
would be personally liable because he holds the general partnership interest, if he
discloses that the general partnership interest is held by him in a fiduciary capacity. This
immunity does not apply if an executor or administrator causes loss or injury to a person
who is not a partner in the partnership, by a wrongful act or omission. This immunity is
not available to an executor or administrator who holds a general partnership interest in
his fiduciary capacity if his spouse or any of his lineal descendants, or the executor or
administrator himself other than in his fiduciary capacity, holds any interest in the
partnership.


A partnership certificate that is filed pursuant to Chapter 1777. or another chapter of the
Revised Code and that indicates that an executor or administrator holds a general
partnership interest in a fiduciary capacity by the use following the name or signature of
the executor or administrator of the words "executor under the will of (name of
decedent)" or "administrator of the estate of (name of decedent)," or other words that
indicate the executor's or administrator's fiduciary capacity, constitutes a sufficient
disclosure for purposes of this division.


If a partnership certificate is not required to be filed pursuant to Chapter 1777. or another
chapter of the Revised Code, a sufficient disclosure for purposes of this division can be
made by an executor or administrator if a certificate that satisfies the following
requirements is filed with the recorder of the county in which the partnership's principal
office or place of business is situated and with the recorder of each county in which the
partnership owns real estate:


(a) The certificate shall state in full the names of all persons holding interests in the
partnership and their places of residence;


(b) The certificate shall be signed by all persons who are general partners in the
partnership, and shall be acknowledged by a person authorized to take acknowledgements
of deeds;


(c) The certificate shall use the words "executor under the will of (name of decedent)" or
"administrator of the estate of (name of decedent)," or other words that indicate the
executor's or administrator's fiduciary capacity, following his name or signature.


A contract or other written instrument delivered to a party that contracts with the
partnership in which an executor or administrator holds a general partnership interest in a
fiduciary capacity, which indicates that the executor or administrator so holds the interest,
constitutes a disclosure for purposes of this division with respect to transactions between
the party and the partnership. If a disclosure has been made by a certificate in accordance
with this division, a disclosure for purposes of this division with respect to such
transactions exists regardless of whether a contract or other instrument indicates the
executor or administrator holds the general partnership interest in a fiduciary capacity.


If an executor or administrator acquires, in his fiduciary capacity, a general partnership
interest, the decedent's estate is liable for debts, obligations, or liabilities of the
partnership.


(C) An estate that includes a general partnership interest is not liable for the debts,
obligations, or liabilities of a partnership in which another estate has a general partnership
interest, merely because the executor or administrator of the estates holds a general
partnership interest in both of the partnerships in his fiduciary capacities.


(D) Divisions (B) and (C) of this section apply to general partnership interests held by
executors or administrators in their fiduciary capacities prior to and on or after the
effective date of this section. If an appropriate disclosure is made pursuant to division (B)
of this section, the immunity acquired under that division extends only to debts,
obligations, and liabilities of the partnership arising on and after the date of the disclosure
and to debts, obligations, and liabilities of the partnership that arose prior to the
acquisition of the general partnership interest by the executor or administrator becoming
a general partner.

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:3
posted:9/12/2011
language:English
pages:8