Chapter 2109: FIDUCIARIES

2109.01 Fiduciary defined.

Fiduciary," as used in Chapters 2101. to 2131. of the Revised Code, means any person, other than an assignee or trustee for an insolvent debtor or a guardian under sections 5905.01 to 5905.19 of the Revised Code, appointed by and accountable to the probate court and acting in a fiduciary capacity for any person, or charged with duties in relation to any property, interest, trust, or estate for the benefit of another; and includes an agency under contract with the department of developmental disabilities for the provision of protective service under sections 5123.55 to 5123.59 of the Revised Code, appointed by and accountable to the probate court as guardian or trustee with respect to mentally retarded or developmentally disabled persons.

Cite as R.C. § 2109.01

Amended by 128th General Assemblych.54, SB 79, §1, eff. 10/6/2009.

Effective Date: 07-01-1991; 2008 HB499 09-12-2008

2109.02 Appointment and duties.

Every fiduciary, before entering upon the execution of a trust, shall receive letters of appointment from a probate court having jurisdiction of the subject matter of the trust.

The duties of a fiduciary shall be those required by law, and such additional duties as the court orders. Letters of appointment shall not issue until a fiduciary has executed a written acceptance of the fiduciary's duties, acknowledging that the fiduciary is subject to removal for failure to perform the fiduciary's duties, and that the fiduciary is subject to possible penalties for conversion of property the fiduciary held as a fiduciary. The written acceptance may be filed with the application for appointment.

No act or transaction by a fiduciary is valid prior to the issuance of letters of appointment to the fiduciary. This section does not prevent an executor named in a will, an executor nominated pursuant to a power as described in section 2107.65 of the Revised Code, or a person with the right of disposition under section 2108.70 or 2108.81 of the Revised Code from paying funeral expenses, or prevent necessary acts for the preservation of the trust estate prior to the issuance of those letters.

Cite as R.C. § 2109.02

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-14-1983; 10-12-2006

2109.021 Fiduciary filings by mail or in person.

After letters of appointment are issued to a fiduciary, the court shall accept filings by mail in matters of estates, guardianships, or trusts, unless the court in writing notifies the fiduciary or attorney of record that a personal appearance is necessary, or a personal appearance is otherwise required by law. The court shall reject an improper or incomplete filing and shall return it to the sender.

Cite as R.C. § 2109.021

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 05-26-1976

2109.022 [Repealed].

Cite as R.C. § 2109.022

Effective Date: 03-22-1989; 2008 HB499 09-12-2008

2109.03 Fiduciary's attorney.

At the time of the appointment of a fiduciary, the fiduciary shall file in the probate court the name of the attorney, if any, who will represent the fiduciary in matters relating to the trust. After the name of an attorney has been filed, notices sent to that fiduciary in the fiduciary's official capacity shall also be sent by the court to that attorney who may sign waiver of service of any or all of the notices upon the attorney. If the fiduciary is absent from the state, the attorney shall be the agent of the fiduciary upon whom summonses, citations, and notices may be served. Any summons, citation, or notice may be served upon the fiduciary by delivering duplicate copies of the summons, citation, or notice to the attorney designated by the fiduciary. No probate judge shall permit any person to practice law in the probate court for compensation, unless the person has been admitted to the practice of law within the state. This section does not prevent any person from representing the person's own interest in any estate, matter, action, or proceeding.

Cite as R.C. § 2109.03

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-01-1953

2109.04 Bond.

(A)

(1) Unless otherwise provided by law, order, or local rule, every fiduciary, prior to the issuance of the fiduciary's letters as provided by section 2109.02 of the Revised Code, shall file in the probate court in which the letters are to be issued a bond with a penal sum in an amount that is fixed by the court, but in no event less than double the probable value of the personal property and of the annual real property rentals that will come into the possession or under the control of the person as a fiduciary. The bond of a fiduciary shall be in a form approved by the court and signed by two or more personal sureties or by one or more corporate sureties approved by the court. It shall be conditioned that the fiduciary faithfully and honestly will discharge the duties devolving upon the person as fiduciary, and shall be conditioned further as may be provided by law.

(2) Except as otherwise provided in this division, if the instrument creating the trust dispenses with the giving of a bond, the court shall appoint a fiduciary without bond, unless the court is of the opinion that the interest of the trust demands it. If the court is of that opinion, it may require bond to be given in any amount it fixes. If a parent nominates a guardian for the parent's child in a will and provides in the will that the guardian may serve without giving bond, the court may appoint the guardian without bond or require the guardian to give bond in accordance with division (A)(1) of this section.

(3) A guardian of the person only does not have to give bond unless, for good cause shown, the court considers a bond to be necessary. When a bond is required of a guardian of the person only, it shall be determined and filed in accordance with division (A)(1) of this section. This division does not apply to a guardian of the person only nominated in a parent's will if the will provides that the guardian may serve without giving bond.

(4) When the probable value of the personal property and of the annual real property rentals that will come into the possession or under the control of the guardian as a fiduciary is less than ten thousand dollars, the court may waive or reduce a bond required by division (A)(1) of this section.

(B) When an executive director who is responsible for the administration of children services in the county is appointed as trustee of the estate of a ward pursuant to section 5153.18 of the Revised Code and has furnished bond under section 5153.13 of the Revised Code, or when an agency under contract with the department of developmental disabilities for the provision of protective service under sections 5123.55 to 5123.59 of the Revised Code is appointed as trustee of the estate of a ward under sections 5123.55 to 5123.59 of the Revised Code and any employees of the agency having custody or control of funds or property of that ward have furnished bond under section 5123.59 of the Revised Code, the court may dispense with the giving of a bond.

(C) When letters are granted without bond, at any later period on its own motion or upon the application of any party interested, the court may require bond to be given in an amount that is fixed by the court. On failure to give that bond, the defaulting fiduciary shall be removed.

No instrument authorizing a fiduciary whom it names to serve without bond shall be construed to relieve a successor fiduciary from the necessity of giving bond, unless the instrument clearly evidences that intention.

The court that appoints a fiduciary may reduce the amount of the bond of the fiduciary at any time for good cause shown.

When two or more persons are appointed as joint fiduciaries, the court may take a separate bond from each or a joint bond from all.

Cite as R.C. § 2109.04

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Amended by 128th General Assemblych.52, SB 79, §1, eff. 10/6/2009.

Effective Date: 09-10-1991

2109.05 Bond - trust created by will.

When considered necessary by the probate court and not otherwise directed in the will, a bond, as provided by sections 2109.01 to 2109.58 of the Revised Code, shall be required in all trusts created by will and not fully discharged, on the petition of an interested person and after notice to the trustee.

If the trustee fails to give bond within the time ordered by the court, the court shall remove the trustee from the trust, or the trustee shall be considered to have declined it.

Cite as R.C. § 2109.05

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-01-1953

2109.06 New or additional bond.

The probate court that appoints a fiduciary may, on its own motion or on the application of any interested party, and after notice to the fiduciary, require a new bond or sureties or an additional bond or sureties whenever, in the opinion of the court, the interests of the trust demand it.

Immediately upon the filing of the inventory by a fiduciary, the court shall determine whether the amount of the bond of the fiduciary is sufficient and shall require new or additional bond if in the opinion of the court the interests of the trust demand it.

When a new bond is required as provided in this section, the sureties in the prior bond shall nevertheless be liable for all breaches of the conditions set forth in the bond that are committed before the new bond is approved by the court.

The court shall remove a fiduciary who fails within the time fixed by the court to furnish new or additional bond or sureties , and the court shall appoint a successor fiduciary.

Cite as R.C. § 2109.06

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-01-1953

2109.07 Bond conditions - administrator - when not required.

(A) The bond required of an administrator by section 2109.04 of the Revised Code shall not be required in either of the following cases:

(1) It shall not be required of a surviving spouse to administer the deceased spouse's estate if the surviving spouse is entitled to the entire net proceeds of the estate.

(2) It shall not be required of an administrator to administer an estate if there is no will, if the administrator is the next of kin, and if the administrator is entitled to the entire net proceeds of the estate.

(B) The bond otherwise required by section 2109.04 of the Revised Code of an administrator shall be conditioned as follows:

(1) To file with the probate court within the time required by section 2115.02 of the Revised Code an inventory of all tangible and intangible personal property of the deceased that is to be administered and that comes to the administrator's possession or knowledge and an inventory of the deceased's interest in real property located in this state;

(2) To administer and distribute according to law all tangible and intangible personal property of the deceased, the proceeds of any action for wrongful death or of any settlement, with or without suit, of a wrongful death claim, and the proceeds of all real property in which the deceased had an interest, that is located in this state, and that is sold, when the property or proceeds have come to the possession of the administrator or to the possession of a person for the administrator;

(3) To render a just and true account of the administrator's administration at the times required by section 2109.301 of the Revised Code;

(4) To deliver the letters of administration into court if a will of the deceased is proved and allowed.

Cite as R.C. § 2109.07

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-31-2001

2109.08 Bond conditions - special administrator.

The bond required by section 2109.04 of the Revised Code of a special administrator shall be conditioned as follows:

(A) To file with the probate court within three months an inventory of the tangible and intangible personal property of the deceased that has or may come to the special administrator's possession or knowledge;

(B) To account for the tangible and intangible personal property of the deceased and for the debts of the deceased that the special administrator receives as special administrator, whenever required by the court, and deliver them to the person authorized to receive them.

Cite as R.C. § 2109.08

Effective Date: 10-01-1996

2109.09 Bond conditions - executor.

(A) Unless the testator has specified otherwise in the will, the bond required of an executor by section 2109.04 of the Revised Code shall not be required of the executor to administer an estate in accordance with the will of the testator if the executor is the next of kin and if the executor is entitled to the entire net proceeds of the estate.

(B) The bond otherwise required of an executor by section 2109.04 of the Revised Code shall be conditioned as follows:

(1) To file with the probate court within the time required by section 2115.02 of the Revised Code an inventory of all the tangible and intangible personal property of the testator that is to be administered and that comes to the executor's possession or knowledge and an inventory of the testator's interest in real property located in this state;

(2) To administer and distribute according to law and the will of the testator all the testator's tangible and intangible personal property, the proceeds of any action for wrongful death or of any settlement, with or without suit, of a wrongful death claim, and the proceeds of all real property in which the testator had an interest, that is located in this state, and that is sold, when the property or proceeds have come to the possession of the executor or to the possession of another person for the executor;

(3) To render a just and true account of the executor's administration at the times required by section 2109.301 of the Revised Code.

Cite as R.C. § 2109.09

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-31-2001

2109.10 Bond when executor or administrator is sole residuary legatee or distributee.

If an executor or administrator is sole residuary legatee or distributee and if division (A) of section 2109.07 or division (A) of section 2109.09 of the Revised Code does not apply, instead of giving the bond prescribed by section 2109.04 of the Revised Code, the executor or administrator may give a bond to the satisfaction of the probate court conditioned as follows:

(A) To pay the costs of administration and all the debts and legacies of the decedent to the extent of the assets of the estate;

(B) If there is a will, to pay over the testator's estate to the person entitled to the testator's estate if the will is set aside;

(C) If there is no will offered at the opening of the estate, to pay over the testator's estate to the person entitled to the testator's estate if a will is probated after the administrator's initial appointment.

The giving of that bond shall not discharge the lien on the decedent's real property for the payment of the decedent's debts, except that part that has been lawfully sold by the executor or administrator.

Cite as R.C. § 2109.10

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-29-1999

2109.11 Bond conditions - testamentary trustees.

The bond required by section 2109.04 of the Revised Code of a testamentary trustee shall be conditioned as follows:

(A) To make and return to the probate court within the time required by section 2109.58 of the Revised Code a true inventory of all moneys, rights, credits, other personal property, and real property belonging to the trust that come to the trustee's possession or knowledge;

(B) To administer and distribute according to law and the will of the testator all moneys, rights, credits, other personal property and real property belonging to the trust that come to the possession of the trustee or to the possession of any other person for the trustee;

(C) To render a just and true account of the trustee's administration at the times required by section 2109.303 of the Revised Code.

Cite as R.C. § 2109.11

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-31-2001

2109.12 Bond conditions - guardians.

Any bond required by or pursuant to section 2109.04 of the Revised Code of a guardian shall be conditioned as follows:

(A) If applicable, to make and return to the probate court within the time required by section 2111.14 of the Revised Code a true inventory of all moneys, rights, credits, other personal property, and real property belonging to the ward that come to the guardian's possession or knowledge;

(B) To administer and distribute according to law all moneys, rights, credits, other personal property, and real property belonging to the ward that come to the possession of the guardian or to the possession of any other person for the guardian;

(C) To render a just and true account of the guardian's administration at any times required by or pursuant to section 2109.302 of the Revised Code.

Cite as R.C. § 2109.12

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-31-2001

2109.13 Deposit of personal property in lieu of bond.

In any case in which a bond is required by the probate court from a fiduciary and the value of the estate or fund is such that the court deems it inexpedient to require security in the full amount prescribed by section 2109.04 of the Revised Code, the court may direct the deposit of any suitable personal property belonging to the estate or fund with a bank, savings bank, savings and loan association, credit union, or trust company incorporated under the laws of this state or of the United States, as may be designated by order of the court.

The deposit shall be made in the name of the fiduciary, and the personal property deposited shall not be withdrawn from the custody of the bank, savings bank, association, credit union, or trust company except upon the special order of the court. No fiduciary shall receive or collect the whole or any part of the principal represented by the personal property without the special order of the court. Such an order can be made in favor of the fiduciary only if the court within its discretion, having regard for the purpose for which the order is requested, the disposition to be made of the assets as may be released, the value of the assets as related to the total value of the estate, and the period of time the assets will remain in the possession of the fiduciary, finds that the original bond previously given and then in force will be sufficient to protect the estate; otherwise, the court, as a condition to the release of the personal property deposited, shall require the fiduciary to execute an additional bond in an amount that the court determines.

After the deposit has been made and after the filing with the court of a receipt for the personal property executed by the designated bank, savings bank, association, credit union, or company, which receipt shall acknowledge that the personal property is held by the bank, savings bank, association, credit union, or company subject to the order of the court, the court may fix or reduce the amount of the bond so that the amount of the penalty of the bond is determined with respect to the value of the remainder only of the estate or fund, without including the value of the personal property deposited. Neither the fiduciary nor the fiduciary's sureties shall be liable for any loss to the trust estate resulting from the deposit as is authorized and directed by the court pursuant to this section, if the fiduciary has acted in good faith.

This section may be invoked simultaneously with the initial application for appointment of the fiduciary if an interim receipt of the bank, savings bank, association, credit union, or company for which the application for appointment as depositary is being made, acknowledging that it already has received temporary deposit of the personal property described in the application for appointment as depositary, accompanies the simultaneous applications for appointment of fiduciary and for appointment of the depositary.

Cite as R.C. § 2109.13

Effective Date: 03-23-1981; 04-14-2006

2109.14 Deposit of works of art in museum authorized - reduction of bond.

If the estate held by a fiduciary consists in whole or in part of works of nature or of art that are suitable for preservation and exhibition in a museum or other similar institution, the probate court may authorize and direct that any or all of those works be deposited with a corporation conducting the museum or other similar institution; provided that no such deposit shall be authorized or directed except with a corporation having a net worth of at least ten times the value of the works to be deposited. The deposit shall be made in the name of the fiduciary, and the property deposited shall not be withdrawn from the custody of the depository or otherwise deposited except upon the special order of the court. The probate judge may impose any conditions relative to insurance and the care and protection of the property deposited that the court thinks best for the interests of the estate and the beneficiaries of the estate. After the deposit has been made, a receipt for that property executed by that corporation shall be filed with the court, and the receipt shall acknowledge that the property is held by that corporation subject to the order of the court. When the receipt is filed, the court may fix or reduce the amount of the bond so that the amount of the penalty of the bond is determined with respect to the value of the remainder only of the estate or fund, without including the value of the property deposited. Neither the fiduciary nor the fiduciary's sureties shall be liable for any loss to the trust estate resulting from a deposit authorized and directed by the court pursuant to this section, provided the fiduciary has acted in good faith.

Cite as R.C. § 2109.14

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-01-1953

2109.15 Informality of bond.

No bond executed by a fiduciary shall be void or held invalid because of any informality in such bond or because of informality or illegality in the appointment of such fiduciary. Such bond shall have the same effect as if the appointment had been legally made and the bond executed in proper form.

Cite as R.C. § 2109.15

Effective Date: 10-01-1953

2109.16 One bond for two or more wards.

When a person is appointed guardian of several minors who are children of the same parentage and inherit from the same estate, separate bonds shall not be required. In such cases, only one application for letters of guardianship is necessary, and the letters issued to such guardian shall be in one copy and not one copy for each minor. The probate court approving and recording the bond of the guardian, if any, and issuing such letters shall charge the fees allowed by section 2101.16 of the Revised Code for such services. Such fees shall be charged but once for all the wards and not once for each ward.

Cite as R.C. § 2109.16

Effective Date: 10-04-1984

2109.17 Sureties.

If the bond of a fiduciary is executed by personal sureties, one or more of the sureties shall be a resident of the county in which the fiduciary applies for appointment. The sureties shall own real property worth double the sum to be secured, over and above all encumbrances, and shall have property in this state liable to execution equal to the sum to be secured. If two or more sureties are offered on the same bond, they must have in the aggregate the qualifications prescribed in this section. The sureties shall qualify under oath and may be required to exhibit to the probate court satisfactory evidence of the ownership of the real property.

No corporate surety shall be acceptable on a fiduciary's bond in the probate court unless the surety is acceptable to the United States government on surety bonds in the same amount, as shown by the regulations issued by the secretary of the treasury of the United States, or in any other manner, to the satisfaction of the court. The surety shall also be qualified to do business in this state.

A surety on the bond of a fiduciary shall not be held liable for any debt of the fiduciary to the estate represented by the fiduciary existing at the time the fiduciary was appointed; but the surety shall be liable to the extent that the debt has been made uncollectible by wrongful act of the fiduciary after appointment.

Cite as R.C. § 2109.17

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-01-1953

2109.18 Release of a fiduciary's sureties.

A surety of a fiduciary or the executor or administrator of a surety may make application at any time to the probate court to be released from the bond of such fiduciary. Such surety shall file a written request therefor with the probate judge of such court and give at least five days' notice in writing to such fiduciary. If, upon the hearing, the court is of the opinion that there is good reason therefor, it shall release such surety. The death of a surety shall always be good cause.

A fiduciary may make application at any time to the court for the release of the fiduciary's sureties. Such fiduciary shall file a written request therefor with the judge of such court and give at least five days' notice in writing to such sureties. If, upon the hearing, the court is of the opinion that there is good reason to release such sureties, it shall order the fiduciary to file an account, as provided by section 2109.301 , 2109.302 , or 2109.303 of the Revised Code, and such sureties shall be released after the fiduciary files a new bond which is approved by the court.

If such fiduciary fails to give new bond as directed, the fiduciary shall be removed and the fiduciary's letters of appointment superseded. Such original sureties shall not be released until the fiduciary gives a bond, but shall be liable for such fiduciary's acts only from the time of executing the original bond to the filing and approval by the court of the new bond.

The costs of such proceeding shall be paid by the surety applying to be released, unless it appears to the court that the fiduciary is insolvent, incompetent, or is wasting the assets of the estate.

Cite as R.C. § 2109.18

Effective Date: 10-31-2001

2109.19 Bond of indemnity to surety.

If a fiduciary wastes or unfaithfully administers an estate, on the application of a surety on the fiduciary's bond the probate court granting letters of appointment to the fiduciary may order the fiduciary to render an account and to execute to the surety a bond of indemnity with sureties approved by the court. Upon neglect or refusal to execute the bond within the time ordered, the court may remove the fiduciary, revoke the fiduciary's letters of appointment, and appoint another fiduciary in the fiduciary's place.

Cite as R.C. § 2109.19

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-01-1953

2109.20 Guardian may give real property mortgage to secure bond.

Instead of the sureties required on a guardian's bond by section 2109.04 of the Revised Code, a guardian of the person and estate or of the estate only of any ward may execute to the ward a mortgage upon unencumbered real property. The guardian first shall furnish to the probate court a title guarantee or a mortgagee's title insurance policy for the benefit of the guardianship, with respect to the real property, and it shall be shown to the court's satisfaction that, exclusive of improvements on the real property, the real property is of a value sufficient to secure the bond. The mortgage shall be recorded in the county in which the property is situated and filed with the court.

Cite as R.C. § 2109.20

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-08-1992

2109.21 Residence qualifications of fiduciary.

(A) An administrator, special administrator, administrator de bonis non, or administrator with the will annexed shall be a resident of this state and shall be removed on proof that the administrator is no longer a resident of this state.

(B)

(1) To qualify for appointment as executor or trustee, an executor or a trustee named in a will or nominated in accordance with any power of nomination conferred in a will, may be a resident of this state or, as provided in this division, a nonresident of this state. To qualify for appointment, a nonresident executor or trustee named in, or nominated pursuant to, a will shall be an individual who is related to the testator by consanguinity or affinity, or a person who resides in a state that has statutes or rules that authorize the appointment of a nonresident person who is not related to the testator by consanguinity or affinity, as an executor or trustee when named in, or nominated pursuant to, a will. No such executor or trustee shall be refused appointment or removed solely because the executor or trustee is not a resident of this state.

The court may require that a nonresident executor or trustee named in, or nominated pursuant to, a will assure that all of the assets of the decedent that are in the county at the time of the death of the decedent will remain in the county until distribution or until the court determines that the assets may be removed from the county.

(2) In accordance with this division and section 2129.08 of the Revised Code, the court shall appoint as an ancillary administrator a person who is named in the will of a nonresident decedent, or who is nominated in accordance with any power of nomination conferred in the will of a nonresident decedent, as a general executor of the decedent's estate or as executor of the portion of the decedent's estate located in this state, whether or not the person so named or nominated is a resident of this state.

To qualify for appointment as an ancillary administrator, a person who is not a resident of this state and who is named or nominated as described in this division, shall be an individual who is related to the testator by consanguinity or affinity, or a person who resides in a state that has statutes or rules that authorize the appointment of a nonresident of that state who is not related to the testator by consanguinity or affinity, as an ancillary administrator when the nonresident is named in a will or nominated in accordance with any power of nomination conferred in a will. If a person who is not a resident of this state and who is named or nominated as described in this division so qualifies for appointment as an ancillary administrator and if the provisions of section 2129.08 of the Revised Code are satisfied, the court shall not refuse to appoint the person, and shall not remove the person, as ancillary administrator solely because the person is not a resident of this state.

The court may require that an ancillary administrator who is not a resident of this state and who is named or nominated as described in this division, assure that all of the assets of the decedent that are in the county at the time of the death of the decedent will remain in the county until distribution or until the court determines that the assets may be removed from the county.

(C)

(1) A guardian of the estate shall be a resident of this state, except that the court may appoint a nonresident of this state as a guardian of the estate if any of the following applies:

(a) The nonresident is named in a will by a parent of a minor.

(b) The nonresident is selected by a minor over the age of fourteen years as provided by section 2111.12 of the Revised Code.

(c) The nonresident is nominated in or pursuant to a durable power of attorney under section 1337.24 of the Revised Code or a writing as described in division (A) of section 2111.121 of the Revised Code.

(2) A guardian of the estate, other than a guardian named in a will by a parent of a minor, selected by a minor over the age of fourteen years, or nominated in or pursuant to a durable power of attorney or writing described in division (C)(1)(c) of this section, may be removed on proof that the guardian of the estate is no longer a resident of this state.

(3) The court may appoint a resident or nonresident of this state as a guardian of the person.

(D) Any fiduciary, whose residence qualifications are not defined in this section, shall be a resident of this state, and shall be removed on proof that the fiduciary is no longer a resident of this state.

(E) Any fiduciary, in order to assist in the carrying out of the fiduciary's fiduciary duties, may employ agents who are not residents of the county or of this state.

(F) Every fiduciary shall sign and file with the court a statement of permanent address and shall notify the court of any change of address. A court may remove a fiduciary if the fiduciary fails to comply with this division.

Cite as R.C. § 2109.21

Amended by 129th General AssemblyFile No.65, SB 117, §1, eff. 3/22/2012.

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Amended by 128th General AssemblyFile No.13, SB 106, §1, eff. 3/23/2010.

Effective Date: 01-14-1997; 2008 SB157 05-14-2008

2109.22 Marriage no disqualification for fiduciary.

The marriage of any person does not disqualify the person from acting as fiduciary, whether the marriage occurs before or after the person's appointment and qualification, and all of the person's acts in that capacity shall have the same validity as though the person were unmarried.

Cite as R.C. § 2109.22

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 01-01-1976

2109.23 [Repealed].

Cite as R.C. § 2109.23

Effective Date: 10-20-1987

2109.24 Resignation or removal of fiduciary.

The probate court at any time may accept the resignation of any fiduciary upon the fiduciary's proper accounting, if the fiduciary was appointed by, is under the control of, or is accountable to the court. The fiduciary may resign by filing a written statement with the court after giving at least fifteen days notice to the persons known to be interested in the estate. Upon notice or a motion of the fiduciary to resign, the court may set the matter for a hearing and may notify all interested persons. No fiduciary shall resign without an order of the court.

If a fiduciary fails to make and file an inventory as required by sections 2109.58 , 2111.14 , and 2115.02 of the Revised Code or to render a just and true account of the fiduciary's administration at the times required by section 2109.301 , 2109.302 , or 2109.303 of the Revised Code, and if the failure continues for thirty days after the fiduciary has been notified by the court of the expiration of the relevant time, the fiduciary may be removed by the court and shall receive no allowance for the fiduciary's services unless the court enters upon its journal its findings that the delay was necessary and reasonable.

The court may remove any fiduciary, after giving the fiduciary not less than ten days' notice, for habitual drunkenness, neglect of duty, incompetency, or fraudulent conduct, because the interest of the property, testamentary trust, or estate that the fiduciary is responsible for administering demands it, or for any other cause authorized by law.

The court may remove a testamentary trustee upon the written application of more than one-half of the persons having an interest in the estate controlled by the testamentary trustee, but the testamentary trustee is not to be considered as a person having an interest in the estate under the proceedings; except that no testamentary trustee appointed under a will shall be removed upon the written application unless for a good cause.

Upon the resignation or removal of the fiduciary, the court shall revoke all letters of authority for the fiduciary.

Cite as R.C. § 2109.24

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-31-2001; 01-01-2007

2109.25 Fiduciary in military service - removal and reinstatement.

(A) Whenever it appears to the satisfaction of the probate court that a fiduciary is unable to perform the fiduciary's duties because the fiduciary is engaged or is about to engage in military service as defined by this section, the court may remove the fiduciary and appoint a substitute or authorize the remaining fiduciaries to execute the trust. That action may be taken on the court's own motion or on the application of any party in interest, including the fiduciary or cofiduciary, either without notice or upon notice to those persons and in the manner that the court shall direct.

If any of the duties of that office remain unexecuted when a fiduciary who has resigned or been removed on account of the fiduciary's military service ceases to be in that military service, the fiduciary shall be reappointed as fiduciary upon the fiduciary's application to the court and upon any notice that the court may direct, provided the fiduciary is at the time a suitable and competent person and has the qualifications as to residence required by section 2109.21 of the Revised Code. If the person is reappointed, the court shall remove the substitute fiduciary and revoke the substitute fiduciary's letters of appointment and shall make such further order or decree as justice requires.

(B) As used in this section, "military service" means any service, work, or occupation that in the opinion of the court is directly or indirectly in furtherance of any military effort of the United States. "Military service" includes internment in an enemy country, residence in any foreign country, or residence in any possession or dependency of the United States, if by reason of the internment or residence the fiduciary is unable to return to this state.

Cite as R.C. § 2109.25

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-01-1953

2109.26 Vacancy before termination of the trust - accounting - successor fiduciary.

If a sole fiduciary dies, is dissolved, declines to accept, resigns, is removed, or becomes incapacitated prior to the termination of the trust, the probate court shall require a final account of all dealings of the trust to be filed by the fiduciary if a living person and able to act. If the fiduciary is a living person but unable to act, the final account shall be filed by the fiduciary's guardian or, if there is no guardian, by some other suitable person in the fiduciary's behalf, appointed or approved by the court. If the fiduciary is a deceased person, the final account shall be filed by the fiduciary's executor or administrator. If no estate is commenced for a deceased fiduciary, the deceased fiduciary's successor shall file the final account. If the fiduciary is a dissolved corporation, the final account shall be filed by those persons that are charged by law with winding up the affairs of the dissolved corporation. The court shall cause the proceedings to be had as are provided by sections 2109.30 to 2109.36 of the Revised Code.

Whenever such a vacancy occurs and that contingency is not otherwise provided for by law or by the instrument creating the trust or whenever the instrument names no fiduciary, the court shall, on its own motion or on the application of any person beneficially interested, issue letters of appointment as fiduciary to a competent person or persons who shall qualify according to law and execute the trust to its proper termination. The vacancy and the appointment of a successor fiduciary shall not affect the liability of the former fiduciary or the former fiduciary's sureties that was previously incurred.

Cite as R.C. § 2109.26

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-01-1953

2109.27 Surviving fiduciaries.

When two or more fiduciaries have been appointed jointly to execute a trust and one or more of them dies, declines, resigns, or is removed, the title shall pass to the remaining fiduciaries who shall execute the trust, unless the creating instrument expresses a contrary intention or unless the probate court on the application of persons interested in the trust determines otherwise. The remaining fiduciaries shall within ninety days after the death, resignation, or removal of a cofiduciary, file in the court a complete account covering all matters to the time of such death, resignation, or removal.

Cite as R.C. § 2109.27

Effective Date: 10-01-1953

2109.28 Merger of fiduciaries.

A trust company or state or national bank having trust powers, resulting from merger or consolidation shall, upon filing proof thereof in the probate court, and without a new appointment, succeed to the rights and duties of all predecessor companies, as fiduciary. A purchase of substantially all the assets and assumption of substantially all the liabilities is a merger for the purposes of sections 2109.01 to 2109.58 , inclusive, of the Revised Code. In all cases of merger or consolidation the bond given by any predecessor fiduciary shall remain liable for all acts of the successor fiduciary except as to any surety released upon application as provided in section 2109.18 of the Revised Code.

Cite as R.C. § 2109.28

Effective Date: 10-01-1953

2109.29 Rights as to shares in corporation.

A corporation need not, unless ordered by a court, take notice of any duty of a fiduciary, or any restriction or limitation of the right, capacity, authority, or interest of such fiduciary, or see to the performance of any duty or requirement imposed upon such fiduciary by Chapters 2101. to 2131., inclusive, of the Revised Code, as to any of such corporation's shares of record in the name of or owned by such fiduciary or in the name of or owned by a decedent, ward, or beneficiary for whom such fiduciary is acting.

Cite as R.C. § 2109.29

Effective Date: 10-01-1953

2109.30 Accounts of fiduciaries.

(A) Every executor and administrator shall render an account of the executor's and administrator's administration at the time and in the manner prescribed in section 2109.301 of the Revised Code. Every guardian or conservator shall render an account of the ward's estate at the time and in the manner prescribed in section 2109.302 of the Revised Code. Every testamentary trustee and other fiduciary not subject to sections 2109.301 and 2109.302 of the Revised Code shall render an account of the testamentary trustee's or other fiduciary's administration at the time and in the manner prescribed in section 2109.303 of the Revised Code.

(B) An account showing complete administration before distribution of assets shall be designated "final account." An account filed subsequent to the final account and showing distribution of assets shall be designated "account of distribution." An account showing complete administration and distribution of assets shall be designated "final and distributive account."

Cite as R.C. § 2109.30

Effective Date: 10-31-2001

2109.301 Administrator or executor rendering account.

(A) An administrator or executor shall render an account at any time other than a time otherwise mentioned in this section upon an order of the probate court issued for good cause shown either at its own instance or upon the motion of any person interested in the estate. Except as otherwise provided in division (B)(2) of this section, an administrator or executor shall render a final account within thirty days after completing the administration of the estate or within any other period of time that the court may order.

Every account shall include an itemized statement of all receipts of the administrator or executor during the accounting period and of all disbursements and distributions made by the executor or administrator during the accounting period. In addition, the account shall include an itemized statement of all funds, assets, and investments of the estate known to or in the possession of the administrator or executor at the end of the accounting period and shall show any changes in investments since the last previous account.

Every account shall be upon the signature of the administrator or executor. When two or more administrators or executors render an account, the court may allow the account upon the signature of one of them. The court may examine the administrator or executor under oath concerning the account.

When an administrator or executor is authorized by law or by the instrument governing distribution to distribute the assets of the estate, in whole or in part, the administrator or executor may do so and include a report of the distribution in the administrator's or executor's succeeding account.

In estates of decedents in which none of the legatees, devisees, or heirs is under a legal disability, each partial accounting of an executor or administrator may be waived by the written consent of all the legatees, devisees, or heirs filed in lieu of a partial accounting otherwise required.

(B)

(1) Every administrator and executor, within six months after appointment, shall render a final and distributive account of the administrator's or executor's administration of the estate unless one or more of the following circumstances apply:

(a) An Ohio estate tax return must be filed for the estate.

(b) A proceeding contesting the validity of the decedent's will pursuant to section 2107.71 of the Revised Code has been commenced.

(c) The surviving spouse has filed an election to take against the will.

(d) The administrator or executor is a party in a civil action.

(e) The estate is insolvent.

(f) For other reasons set forth by the administrator or executor, subject to court approval, it would be detrimental to the estate and its beneficiaries or heirs to file a final and distributive account.

(2) In estates of decedents in which the sole legatee, devisee, or heir is also the administrator or executor of the estate, no partial accountings are required. The administrator or executor of an estate of that type shall file a final account or final and distributive account or, in lieu of filing a final account, the administrator or executor may file with the court within thirty days after completing the administration of the estate a certificate of termination of an estate that states all of the following:

(a) All debts and claims presented to the estate have been paid in full or settled finally.

(b) An estate tax return, if required under the provisions of the Internal Revenue Code or Chapter 5731. of the Revised Code, has been filed, and any estate tax has been paid.

(c) All attorney's fees have been waived by or paid to counsel of record of the estate, and all executor or administrator fees have been waived or paid.

(d) The amount of attorney's fees and the amount of administrator or executor fees that have been paid.

(e) All assets remaining after completion of the activities described in divisions (B)(2)(a) to (d) of this section have been distributed to the sole legatee, devisee, or heir.

(3) In an estate of the type described in division (B)(2) of this section, a sole legatee, devisee, or heir of a decedent may be liable to creditors for debts of and claims against the estate that are presented after the filing of the certificate of termination described in that division and within the time allowed by section 2117.06 of the Revised Code for presentation of the creditors' claims.

(4) Not later than thirteen months after appointment, every administrator and executor shall render an account of the administrator's or executor's administration, unless a certificate of termination is filed under division (B)(2) of this section. Except as provided in divisions (B)(1) and (2) of this section, after the initial account is rendered, every administrator and executor shall render further accounts at least once each year.

Cite as R.C. § 2109.301

Effective Date: 04-08-2004

2109.302 Guardian or conservator rendering account.

(A) Every guardian or conservator shall render an account of the administration of the ward's estate at least once in each two years. The guardian or conservator shall render an account at any time other than a time otherwise mentioned in this section upon the order of the probate court issued for good cause shown either at its own instance or upon the motion of any person interested in the estate. Except as provided in division (B) of this section, every guardian or conservator shall render a final account within thirty days after completing the administration of the ward's estate or within any other period of time that the court may order.

Every account shall include an itemized statement of all receipts of the guardian or conservator during the accounting period and of all disbursements and distributions made by the guardian or conservator during the accounting period. The itemized disbursements and distributions shall be verified by vouchers or proof, except in the case of an account rendered by a corporate fiduciary subject to section 1111.28 of the Revised Code. In addition, the account shall include an itemized statement of all funds, assets, and investments of the estate known to or in the possession of the guardian or conservator at the end of the accounting period and shall show any changes in investments since the last previous account.

Every account shall be upon the signature of the guardian or conservator. When two or more guardians or conservators render an account, the court may allow the account upon the signature of one of the guardians or conservators.

Upon the filing of every account, the guardian or conservator, except a corporate fiduciary subject to section 1111.28 of the Revised Code, shall exhibit to the court for its examination both of the following: the securities shown in the account as being in the possession or under the control of the guardian or conservator, or the certificate of the person in possession of the securities, if held as collateral or pursuant to section 2109.13 or 2131.21 of the Revised Code; and a passbook or certified bank statement showing as to each depository the fund deposited to the credit of the ward's estate. The court may designate a deputy clerk, an agent of a corporate surety on the bond of the guardian or conservator, or another suitable person whom the court appoints as commissioner to make the examination and to report the person's findings to the court. If securities are located outside the county, the court may appoint a commissioner or request another probate court to make the examination and to report its findings to the court. The court may examine the guardian or conservator under oath concerning the account.

If a guardian or conservator is authorized by law to distribute the assets of the estate, in whole or in part, the guardian or conservator may do so and include a report of the distribution in the guardian's or conservator's succeeding account.

(B)

(1) The court may waive, by order, an account that division (A) of this section requires of a guardian of the estate or of a guardian of the person and estate, other than an account made pursuant to court order, if any of the following circumstances apply:

(a) The assets of the estate consist entirely of real property.

(b) The assets of the estate consist entirely of personal property, that property is held by a bank, savings and loan association, or trust company in accordance with section 2109.13 of the Revised Code, and the court has authorized expenditures of not more than ten thousand dollars annually for the support, maintenance, or, if applicable, education of the ward.

(c) The assets of the estate consist entirely of real property and of personal property that is held by a bank, savings and loan association, or trust company in accordance with section 2109.13 of the Revised Code, and the court has authorized expenditures of not more than ten thousand dollars annually for the support, maintenance, or, if applicable, education of the ward.

(2) The order of a court entered pursuant to division (B)(1) of this section is prima-facie evidence that a guardian of the estate or a guardian of the person and estate has authority to make expenditures as described in divisions (B)(1)(b) and (c) of this section.

(3) Notwithstanding the requirements for accounts by other guardians under this section, a guardian of the person is not required to render an account except upon an order of the court that the court issues for good cause shown either at its own instance or upon the motion of any person interested in the estate.

Cite as R.C. § 2109.302

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-31-2001

2109.303 Testamentary trustee rendering account.

(A) Except as provided in division (B) of this section, every testamentary trustee shall, and every other fiduciary not subject to section 2109.301 or 2109.302 of the Revised Code may, render an account of the trustee's or other fiduciary's administration of the estate or trust at least once in each two years. Any testamentary trustee or other fiduciary shall render an account, subject to division (B) of this section, at any time other than a time otherwise mentioned in this section upon an order of the court issued for good cause shown either at its own instance or upon the motion of any person interested in the estate or trust. Every testamentary trustee shall, and every other fiduciary may, render a final account within thirty days after completing the administration of the estate or trust or shall file a final account within any other period of time that the court may order.

Every account shall include an itemized statement of all receipts of the testamentary trustee or other fiduciary during the accounting period and of all disbursements and distributions made by the testamentary trustee or other fiduciary during the accounting period. The itemized disbursements and distributions shall be verified by vouchers or proof, except in the case of an account rendered by a corporate fiduciary subject to section 1111.28 of the Revised Code. In addition, the account shall include an itemized statement of all funds, assets, and investments of the estate or trust known to or in the possession of the testamentary trustee or other fiduciary at the end of the accounting period and shall show any changes in investments since the last previous account. The accounts of testamentary trustees shall, and the accounts of other fiduciaries may, show receipts and disbursements separately identified as to principal and income.

Every account shall be upon the signature of the testamentary trustee or other fiduciary. When two or more testamentary trustees or other fiduciaries render an account, the court may allow the account upon the signature of one of them.

Upon the filing of every account, the testamentary trustee or other fiduciary, except a corporate fiduciary subject to section 1111.28 of the Revised Code, shall exhibit to the court for its examination both of the following: the securities shown in the account as being in the possession or under the control of the testamentary trustee or other fiduciary, or the certificate of the person in possession of the securities, if held as collateral or pursuant to section 2109.13 or 2131.21 of the Revised Code; and a passbook or certified bank statement showing as to each depository the fund deposited to the credit of the estate or trust. The court may designate a deputy clerk, an agent of a corporate surety on the bond of the testamentary trustee or other fiduciary, or another suitable person whom the court appoints as commissioner to make the examination and to report the person's findings to the court. If securities are located outside the county, the court may appoint a commissioner or request another probate court to make the examination and to report its findings to the court. The court may examine the testamentary trustee or other fiduciary under oath concerning the account.

If a testamentary trustee or other fiduciary is authorized by law or by the instrument governing distribution to distribute the assets of the estate or trust, in whole or in part, the testamentary trustee or other fiduciary may do so and include a report of the distribution in the testamentary trustee's or fiduciary's succeeding account.

(B) If the assets of a testamentary charitable trust are held and managed by a testamentary trustee or other fiduciary who is an individual or by a corporate fiduciary and if the trust merges into a qualified community foundation, then, after the testamentary trustee or other fiduciary files with the court a final and distributive account pertaining to the trust and activities up to the effective date of the merger, the testamentary trustee or other fiduciary and any successors of the testamentary trustee or other fiduciary shall not be required to render any accounting to the court pertaining to the merged trust and activities that follow the effective date of the merger.

(C) As used in this section:

(1) "Charitable trust" has the same meaning as in section 109.23 of the Revised Code.

(2) "Qualified community foundation" means any foundation that is exempt from federal income taxation under sections 170(b)(1)(A)(vi) and 501(c)(3) of the "Internal Revenue Code of 1986," 100 Stat. 2085, 26 U.S.C. 170(b)(1)(A)(vi) and 501(c)(3) , as amended; that is further described in section 1.170 A-9(10) and (11) of Title 26 of the Code of Federal Regulations, 26 C.F.R. 1.170A-9(10) and (11) , as amended; and that publishes at least annually and circulates widely within its community an audited report of its fund balances, activities, and donors.

(3) "Testamentary charitable trust" means any charitable trust that is created by a will.

(4) "Other fiduciary" means a fiduciary other than an executor, administrator, guardian, conservator, or testamentary trustee.

Cite as R.C. § 2109.303

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-31-2001

2109.31 Citation to fiduciary to file account.

(A) If a fiduciary neglects or refuses to file an account, inventory, certificate of notice of probate of will, or report when due according to section 2107.19 , 2109.30 , 2111.49 , or 2115.02 of the Revised Code or when ordered by the probate court, the court at its own instance may issue, and on the application of any interested party or of any of the next of kin of any ward shall issue, a citation as described in division (B) of this section to such fiduciary pursuant to Civil Rules 4.1 to 4.6 to compel the filing of the overdue account, inventory, certificate of notice of probate of will, or report.

(B) The citation that is required by division (A) of this section may contain any of the following:

(1) A statement that the particular account, inventory, certificate of notice of probate of will, or report is overdue;

(2) An order to the fiduciary to file the account, inventory, certificate of notice of probate of will, or report, or otherwise to appear before the court on a specified date;

(3) A statement that, upon the issuance of the citation, a continuance to file the account, inventory, certificate of notice of probate of will, or report may be obtained from the court only on or after the date specified pursuant to division (B)(2) of this section.

(C) If a citation is issued to a fiduciary in accordance with divisions (A) and (B) of this section and if the fiduciary fails to file the account, inventory, certificate of notice of probate of will, or report prior to the appearance date specified in the citation, the court may order, on that date, one or more of the following:

(1) The removal of the fiduciary;

(2) A denial of all or part of the fees to which the fiduciary otherwise would be entitled;

(3) A continuance of the time for filing the account, inventory, certificate of notice of probate of will, or report;

(4) An assessment against the fiduciary of a penalty of one hundred dollars and costs of twenty-five dollars for the hearing, or a suspension of all or part of the penalty and costs;

(5) That the fiduciary is in contempt of the court for the failure to comply with the citation and that a specified daily fine, imprisonment, or daily fine and imprisonment may be imposed against the fiduciary, beginning with the appearance date, until the account, inventory, certificate of notice of probate of will, or report is filed with the court;

(6) If the fiduciary does not appear in the court on the specified appearance date, that the fiduciary is in contempt of the court for the failure to comply with the citation, and that one of the following may occur:

(a) The fiduciary shall be taken into custody by the sheriff or a deputy sheriff and brought before the court.

(b) The fiduciary shall appear before the court on a specified date or otherwise be taken into custody by the sheriff or a deputy sheriff and brought before the court.

(D) The assessments, fines, and other sanctions that the court may impose upon a fiduciary pursuant to this section may be imposed only upon a fiduciary and shall not be imposed upon the surety of any fiduciary.

Cite as R.C. § 2109.31

Effective Date: 10-31-2001

2109.32 Hearing on fiduciary's account.

(A) Every fiduciary's account required by section 2109.301 , 2109.302 , or 2109.303 of the Revised Code shall be set for hearing before the probate court. The hearing on the account shall be set not earlier than thirty days after the filing of the account.

At the hearing upon an account required by section 2109.302 or 2109.303 of the Revised Code and, if ordered by the court, upon an account required by section 2109.301 of the Revised Code, the court shall inquire into, consider, and determine all matters relative to the account and the manner in which the fiduciary has executed the fiduciary's trust, including the investment of trust funds, and may order the account approved and settled or make any other order that the court considers proper. If, at the hearing upon an account, the court finds that the fiduciary has fully and lawfully administered the estate or trust and has distributed the assets of the estate or trust in accordance with the law or the instrument governing distribution, as shown in the account, the court shall order the account approved and settled and may order the fiduciary discharged. Upon approval of a final and distributive account required by division (B)(1) of section 2109.301 of the Revised Code, the court may order the surety bond for the fiduciary terminated. Unless otherwise ordered by the court, the fiduciary shall be discharged without further order twelve months following the approval of the final and distributive account.

(B)

(1) An administrator or executor filing an account pursuant to section 2109.301 of the Revised Code shall provide at the time of filing the account a copy of the account to each heir of an intestate estate or to each beneficiary of a testate estate. An administrator or executor is not required to provide a copy of the account to any of the following:

(a) An heir or a beneficiary whose residence is unknown;

(b) A beneficiary of a specific bequest or devise who has received the beneficiary's distribution and for which a receipt has been filed or exhibited with the court.

(2) An administrator or executor filing an account pursuant to section 2109.301 of the Revised Code shall file with the probate court a certificate of service of account prior to or simultaneously with the filing of the account.

(3) The probate court shall not approve the final account of any executor or administrator until the following events have occurred:

(a) Three months have passed since the death of the decedent.

(b) The surviving spouse has filed an election to take under or against the will, or the time for making the election has expired.

(4) If an administrator or executor learns of the existence of newly discovered assets after the filing of the final account or otherwise comes into possession of assets belonging to the estate after the filing of the final account, the executor or administrator shall file a supplemental final account with respect to the disposition of the assets and shall provide a copy of the supplemental final account to each heir of an intestate estate or to each beneficiary of a testate estate, as provided in division (B)(1) of this section and subject to the exceptions specified in divisions (B)(1)(a) and (b) of this section.

(C) The rights of any person with a pecuniary interest in the estate are not barred by approval of an account pursuant to divisions (A) and (B) of this section. These rights may be barred following a hearing on the account pursuant to section 2109.33 of the Revised Code.

Cite as R.C. § 2109.32

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 04-08-2004

2109.33 Service of additional notice - exceptions to account.

A fiduciary may serve notice of the hearing upon the fiduciary's account to be conducted under section 2109.32 of the Revised Code, or may cause the notice to be served, upon any person who is interested in the estate or trust, including creditors as the court may direct. The probate court, after notice to the fiduciary upon the motion of any interested person for good cause shown or at its own instance, may order that a notice of the hearing is to be served upon persons the court designates.

The notice shall be made by mail in addition to service by publication, shall set forth the time and place of the hearing, and shall specify the account to be considered and acted upon by the court at the hearing and the period of time covered by the account. It shall contain a statement to the effect that the person notified is required to examine the account, to inquire into the contents of the account and into all matters that may come before the court at the hearing on the account, and to file any exceptions that the person may have to the account at least five days prior to the hearing on the account, and that upon the person's failure to file exceptions, the account may be approved without further notice. If the person to be notified was not a party to the proceeding in which any prior account was settled, the notice, for the purpose of barring any rights possessed by that person, may include and specify the prior accounts and the periods of time covered by them. In that event, the notice shall inform the person notified that the approval of the account filed most recently will terminate any rights possessed by the person to vacate the order settling each prior account so specified, except as provided in section 2109.35 of the Revised Code, and shall further inform the person that, under penalty of losing those rights, the person shall examine each prior account so specified, shall inquire into its contents, and, if the person considers it necessary to protect the person's rights, shall take the action with respect to the person's rights that is permitted by law.

The notice of the hearing upon an account shall be served at least fifteen days prior to the hearing on the account. Any competent person may waive service of notice and consent to the approval of any account by the court. Waivers of service and consents to approval shall be recorded with the account.

Any person interested in an estate or trust may file exceptions to an account or to matters pertaining to the execution of the trust. All exceptions shall be specific and written. Exceptions shall be filed and a copy of them furnished to the fiduciary by the exceptor, not less than five days prior to the hearing on the account. The court for cause may allow further time to file exceptions. If exceptions are filed to an account, the court may allow further time for serving notice of the hearing upon any person who may be affected by an order disposing of the exceptions and who has not already been served with notice of the hearing in accordance with this section.

A probate court, by local rule, may require that notice of the hearing on a final account be given to all heirs in an intestate estate and to all residuary beneficiaries in a testate estate.

Any notice that is required or permitted by this section or by any local rule adopted under authority of this section shall be served, and any waiver of the right to receive any notice of those types may be waived, in accordance with the Rules of Civil Procedure.

Cite as R.C. § 2109.33

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 06-23-1994

2109.34 Representation in account proceeding.

If an interest in an estate or trust is or may be possessed by persons who will compose a certain class upon the happening of any future event, the unborn members of that class shall be considered to be represented in any hearing upon a fiduciary's account required by section 2109.32 of the Revised Code, if any living member of the class is made a party to that proceeding or if a trustee for the proceeding is appointed by the probate court. The unborn members of the class need not be served by publication. An order made in the proceeding shall be binding upon all members of the class, except that the order may be vacated for fraud as provided in section 2109.35 of the Revised Code.

If the beneficiaries, both present and future, of a charitable trust are not represented by a trustee or an existing corporation or other organization, they shall be represented in any proceeding under this section by the attorney general if the attorney general is made a party to the proceeding. Any order made in the proceeding shall be binding upon those beneficiaries, except for fraud.

Cite as R.C. § 2109.34

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-01-1953

2109.35 Effect of order settling account - vacation of order.

The order of the probate court upon the settlement of a fiduciary's account shall have the effect of a judgment and may be vacated only as follows:

(A) The order may be vacated for fraud, upon motion of any person affected by the order or upon the court's own order, if the motion is filed or order is made within one year after discovery of the existence of the fraud. Any person who is subject to any legal disability may file the motion at any time within one year after the removal of the legal disability or within one year after the person discovers the existence of the fraud, whichever is later, or the person's guardian or a successor guardian may do so during the period of the legal disability. If the death of any person occurs during the period within which the person could have filed the motion, the person's administrator or executor may file it within one year after the person's death.

(B) The order may be vacated for good cause shown, other than fraud, upon motion of any person affected by the order who was not a party to the proceeding in which the order was made and who had no knowledge of the proceeding in time to appear in it; provided that, if the account settled by the order is included and specified in the notice to that person of the proceeding in which a subsequent account is settled, the right of that person to vacate the order shall terminate upon the settlement of the subsequent account. A person affected by an order settling an account shall be considered to have been a party to the proceeding in which the order was made if that person was served with notice of the hearing on the account in accordance with section 2109.33 of the Revised Code, waived that notice, consented to the approval of the account, filed exceptions to the account, or is bound by section 2109.34 of the Revised Code; but no person in being who is under legal disability at the time of that proceeding shall be considered to have been a party to that proceeding unless the person was represented in it as provided in section 2111.23 of the Revised Code. Neither the fiduciary nor the fiduciary's surety shall incur any liability as a result of the vacation of an order settling an account in accordance with this division, if the motion to vacate the order is filed more than three years following the settlement of the fiduciary's account showing complete distribution of assets; but the three-year period shall not affect the liability of any heir, devisee, or distributee either before or after the expiration of that period.

(C) The order may be vacated for good cause shown upon motion of the fiduciary, if the motion is filed prior to the settlement of the account showing that the fiduciary has fully discharged his trust.

A motion to vacate an order settling an account shall set forth the items of the account with respect to which complaint is made and the reasons for complaining of those items. The person filing a motion to vacate an order settling an account or another person the court may designate shall cause notice of the hearing on the motion to be served upon all interested parties who may be adversely affected by an order of the court granting the motion.

An order settling an account shall not be vacated unless the court determines that there is good cause for doing so, and the burden of proving good cause shall be upon the complaining party.

The vacation of an order settling an account, made after notice given in the manner provided in section 2109.33 of the Revised Code, shall not affect the rights of a purchaser for value in good faith, a lessee for value in good faith, or an encumbrancer for value in good faith; provided that, if the fiduciary has effected any such sale, lease, or encumbrance, any person prejudiced by it may proceed, after vacation of the order, against any distributee benefiting from the sale, lease, or encumbrance to the extent of the amount received by that distributee on distribution of the estate or trust, or if any heir, devisee, or distributee has effected any such sale, lease, or encumbrance, any person prejudiced by it may proceed, after the vacation of the order, against that heir, devisee, or distributee, to the extent of the value at the time of alienation of the property aliened by the person, with legal interest.

Cite as R.C. § 2109.35

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 06-23-1994

2109.36 Order of distribution.

An application for an order of distribution of the assets of an estate or trust held by a fiduciary may be set for hearing before the probate court at the time that the court shall designate. The fiduciary may serve notice of the hearing upon the application, or cause the notice to be served, upon any person who may be affected by an order disposing of the application; or the court, upon motion of any interested person for good cause shown or at its own instance, may order the notice to be served upon that person. The notice shall set forth the time and place of the hearing and shall be accompanied by a statement of the proposed distribution. At the hearing upon the application the court shall inquire into, consider, and determine all matters relative to the application, and make an order that the court considers proper. If the court makes an order of distribution, the fiduciary shall comply with the order and shall account to the court for the fiduciary's distribution, verified by vouchers or proof. An order of distribution shall have the effect of a judgment. The order may be reviewed upon appeal and may be vacated as provided in section 2109.35 of the Revised Code.

Cite as R.C. § 2109.36

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-01-1953

2109.361 Application by beneficiary for approval of third-party distribution.

(A) As used in this section, "third-party distribution" means the distribution by a fiduciary of an estate or trust of the assets of that estate or trust when both of the following apply:

(1) The fiduciary makes the distribution to either of the following persons:

(a) The transferee of a beneficiary;

(b) Any person pursuant to an agreement, request, or instruction of a beneficiary or pursuant to a legal claim against a beneficiary.

(2) The distribution is the subject of an agreement between a beneficiary and any person that requires the fiduciary or beneficiary to pay a percentage of an inheritance or a dollar amount to any person other than the beneficiary.

(B) Prior to making a third-party distribution, the affected beneficiary or the affected beneficiary's guardian or other legal representative of the beneficiary may file an application for the approval of a third-party distribution with the probate court. An application filed pursuant to this division shall identify the person to whom the third-party distribution is to be made, disclose the basis for making the third-party distribution, and include a copy of any written agreement between the affected beneficiary and the person to whom the third-party distribution is to be made.

(C) The probate court shall hold a hearing on an application filed under division (B) of this section. The applicant shall serve notice of the hearing on all interested parties at least fifteen days prior to the hearing in accordance with Civil Rule 73. An interested party may waive notice of the hearing in accordance with Civil Rule 73.

(D) The probate court may approve the third-party distribution in whole or in part, as the court determines is just and equitable. To the extent that the application is approved, the court shall determine whether the third-party distribution is properly charged solely against the beneficiary's share of the estate or trust or whether some or all of the third-party distribution is properly charged against the residue of the affected estate or trust. The court may consider any relevant factors in evaluating the application, including, but not limited to, any of the following:

(1) The amount or percentage of the affected beneficiary's share that would be the subject of the proposed third-party distribution measured against the reasonable value of any assets or services the person to whom the third-party distribution would be made provided to the beneficiary or to the estate or trust;

(2) Whether the agreement, request, or instructions of the affected beneficiary were procured by duress, fraud, misrepresentation, undue influence, or other unfair means;

(3) Whether the amount of the proposed third-party distribution is fixed or contingent under the terms of the agreement between the affected beneficiary and the recipient of the proposed third-party distribution;

(4) Whether the beneficiary was represented by an attorney during the pendency of the probate action, or the beneficiary authorized the recipient of the proposed third-party distribution to retain an attorney who is licensed to practice law in Ohio for the beneficiary to formally represent the beneficiary in any proceeding regarding the decedent's estate, and the recipient of the proposed third-party distribution is responsible for paying the attorney's fees;

(5) The extent, if any, to which the recipient of the proposed third-party distribution incurred expenses in connection with the services provided to the affected beneficiary, estate, or trust;

(6) Whether the beneficiary was required to advance any payments for fees or expenses to the recipient of the proposed third-party distribution.

(E) Division (D)(4) of this section does not prohibit the beneficiary from retaining the beneficiary's own legal counsel.

(F) This section does not apply to third-party distributions to an attorney who represents a beneficiary and does not affect any other provision of law regarding the compensation of attorneys.

Cite as R.C. § 2109.361

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 03-23-2007

2109.37 Investment of trust funds by fiduciary.

(A) Except as otherwise provided by law, including division (D) of this section, or by the instrument creating the trust, a fiduciary having funds belonging to a trust that are to be invested may invest them in the following:

(1) Bonds or other obligations of the United States or of this state;

(2) Bonds or other interest-bearing obligations of any county, municipal corporation, school district, or other legally constituted political taxing subdivision within the state, provided that the county, municipal corporation, school district, or other subdivision has not defaulted in the payment of the interest on any of its bonds or interest-bearing obligations, for more than one hundred twenty days during the ten years immediately preceding the investment by the fiduciary in the bonds or other obligations, and provided that the county, municipal corporation, school district, or other subdivision, is not, at the time of the investment, in default in the payment of principal or interest on any of its bonds or other interest-bearing obligations;

(3) Bonds or other interest-bearing obligations of any other state of the United States which, within twenty years prior to the making of that investment, has not defaulted for more than ninety days in the payment of principal or interest on any of its bonds or other interest-bearing obligations;

(4) Any bonds issued by or for federal land banks and any debentures issued by or for federal intermediate credit banks under the "Federal Farm Loan Act of 1916," 39 Stat. 360, 12 U.S.C.A. 641, as amended; or any debentures issued by or for banks for cooperatives under the "Farm Credit Act of 1933," 48 Stat. 257, 12 U.S.C.A. 131, as amended;

(5) Notes that are: (a) secured by a first mortgage on real property held in fee and located in the state, improved by a unit designed principally for residential use for not more than four families or by a combination of that dwelling unit and business property, the area designed or used for nonresidential purposes not to exceed fifty per cent of the total floor area; (b) secured by a first mortgage on real property held in fee and located in the state, improved with a building designed for residential use for more than four families or with a building used primarily for business purposes, if the unpaid principal of the notes secured by that mortgage does not exceed ten per cent of the value of the estate or trust or does not exceed five thousand dollars, whichever is greater; or (c) secured by a first mortgage on an improved farm held in fee and located in the state, provided that the mortgage requires that the buildings on the mortgaged property shall be well insured against loss by fire, and so kept, for the benefit of the mortgagee, until the debt is paid, and provided that the unpaid principal of the notes secured by the mortgage shall not exceed fifty per cent of the fair value of the mortgaged real property at the time the investment is made, and the notes shall be payable not more than five years after the date on which the investment in them is made; except that the unpaid principal of the notes may equal sixty per cent of the fair value of the mortgaged real property at the time the investment is made, and may be payable over a period of fifteen years following the date of the investment by the fiduciary if regular installment payments are required sufficient to amortize four per cent or more of the principal of the outstanding notes per annum and if the unpaid principal and interest become due and payable at the option of the holder upon any default in the payment of any installment of interest or principal upon the notes, or of taxes, assessments, or insurance premiums upon the mortgaged premises or upon the failure to cure any such default within any grace period provided in the notes not exceeding ninety days in duration;

(6) Life, endowment, or annuity contracts of legal reserve life insurance companies regulated by sections 3907.01 to 3907.21 , 3909.01 to 3909.17 , 3911.01 to 3911.24 , 3913.01 to 3913.10 , 3915.01 to 3915.15 , and 3917.01 to 3917.05 of the Revised Code, and licensed by the superintendent of insurance to transact business within the state, provided that the purchase of contracts authorized by this division shall be limited to executors or the successors to their powers when specifically authorized by will and to guardians and trustees, which contracts may be issued on the life of a ward, a beneficiary of a trust fund, or according to a will, or upon the life of a person in whom the ward or beneficiary has an insurable interest and the contracts shall be drawn by the insuring company so that the proceeds shall be the sole property of the person whose funds are so invested;

(7) Notes or bonds secured by mortgages and insured by the federal housing administrator or debentures issued by that administrator;

(8) Obligations issued by a federal home loan bank created under the "Federal Home Loan Bank Act of 1932," 47 Stat. 725, 12 U.S.C.A. 1421 , as amended;

(9) Shares and certificates or other evidences of deposits issued by a federal savings and loan association organized and incorporated under the "Home Owners' Loan Act of 1933," 48 Stat. 128, 12 U.S.C.A. 1461 , as amended, to the extent and only to the extent that those shares or certificates or other evidences of deposits are insured pursuant to the "Financial Institutions Reform, Recovery, and Enforcement Act of 1989," 103 Stat. 183, 12 U.S.C.A. 1811 , as amended;

(10) Bonds issued by the home owners' loan corporation created under the "Home Owners' Act of 1933," 48 Stat. 128, 12 U.S.C.A. 1461 , as amended;

(11) Obligations issued by the national mortgage association created under the "National Housing Act," 48 Stat. 1246 (1934), 12 U.S.C.A. 1701 , as amended;

(12) Shares and certificates or other evidences of deposits issued by a domestic savings and loan association organized under the laws of the state, which association has obtained insurance of accounts pursuant to the "Financial Institutions Reform, Recovery, and Enforcement Act of 1989," 103 Stat. 183, 12 U.S.C.A. 1811 , as amended, or as may be otherwise provided by law, only to the extent that the evidences of deposits are insured under that act, as amended;

(13) Shares and certificates or other evidences of deposits issued by a domestic savings and loan association organized under the laws of the state, provided that no fiduciary may invest the deposits except with the approval of the probate court, and then in an amount not to exceed the amount that the fiduciary is permitted to invest under division (A)(12) of this section;

(14) In savings accounts in, or certificates or other evidences of deposits issued by, a national bank located in the state or a state bank located in and organized under the laws of the state or a state credit union located and organized under the laws of the state or a federal credit union located in the state by depositing the funds in the bank or credit union, and the national or state bank or the federal or state credit union when itself acting in a fiduciary capacity may deposit the funds in savings accounts in, or certificates or other evidences of deposits issued by, its own savings department or any bank subsidiary corporation owned or controlled by the bank holding company that owns or controls the national or state bank; provided that no deposit shall be made by any fiduciary, individual or corporate, unless the deposits of the depository bank are insured by the federal deposit insurance corporation created under the "Federal Deposit Insurance Corporation Act of 1933," 48 Stat. 162, 12 U.S.C. 264 , as amended, or provided that no deposit shall be made by any fiduciary, individual or corporate, unless the deposits of the depository credit union are insured by the national credit union administration created under the "Federal Credit Union Act of 1934," 48 Stat. 1216, 12 U.S.C. 1751 , as amended, or the deposits of the depository credit union are insured by a share guaranty corporation as defined in Chapter 1761. of the Revised Code, and provided that the deposit of the funds of any one trust in those savings accounts in, or certificates or other evidences of deposits issued by, any one bank or credit union shall not exceed the sum insured under those acts, as amended, or under Chapter 1761. of the Revised Code;

(15) Obligations consisting of notes, bonds, debentures, or equipment trust certificates issued under an indenture that are the direct obligations, or in the case of equipment trust certificates are secured by direct obligations, of a railroad or industrial corporation, or a corporation engaged directly and primarily in the production, transportation, distribution, or sale of electricity or gas, or the operation of telephone or telegraph systems or waterworks, or in some combination of them; provided that the obligor corporation is one that is incorporated under the laws of the United States, any state, the District of Columbia, or foreign government, and the obligations are rated at the time of purchase in the highest or next highest classification established by at least two standard rating services selected from a list of the standard rating services that shall be prescribed by the superintendent of financial institutions; provided that every such list shall be certified by the superintendent to the clerk of each probate court in the state, and shall continue in effect until a different list is prescribed and certified as provided in this division;

(16) Obligations issued, assumed, or guaranteed by the international finance corporation or by the international bank for reconstruction and development, the Asian development bank, the inter-American development bank, the African development bank, or other similar development bank in which the president, as authorized by congress and on behalf of the United States, has accepted membership, provided that the obligations are rated at the time of purchase in the highest or next highest classification established by at least one standard rating service selected from a list of standard rating services that shall be prescribed by the superintendent of financial institutions;

(17) Securities of any investment company, as defined in and registered under sections 3 and 8 of the "Investment Company Act of 1940," 54 Stat. 789, 15 U.S.C.A. 80a-3 and 80a-8 , that are invested exclusively in forms of investment or in instruments that are fully collateralized by forms of investment in which the fiduciary is permitted to invest pursuant to divisions (A)(1) to (16) of this section, provided that, in addition to those forms of investment, the investment company may, for the purpose of reducing risk of loss or of stabilizing investment returns, engage in hedging transactions.

(B) No administrator or executor may invest funds belonging to an estate in any asset other than a direct obligation of the United States that has a maturity date not exceeding one year from the date of investment, or other than in a short-term investment fund that is invested exclusively in obligations of the United States or of its agencies, or primarily in those obligations and otherwise only in variable demand notes, corporate money market instruments including, but not limited to, commercial paper, or fully collateralized repurchase agreements or other evidences of indebtedness that are payable on demand or generally have a maturity date not exceeding ninety-one days from the date of investment, except with the approval of the probate court or with the permission of the instruments creating the trust.

(C)

(1) In addition to the investments allowed by this section, a guardian or trustee, with the approval of the court, may invest funds belonging to the trust in productive real property located within the state, provided that neither the guardian nor the trustee nor any member of the family of either has any interest in the real property or in the proceeds of the purchase price. The title to any real property so purchased by a guardian shall be taken in the name of the ward.

(2) Notwithstanding the provisions of division (C)(1) of this section, the court may permit the funds to be used to purchase or acquire a home for the ward or an interest in a home for the ward in which a member of the ward's family may have an interest. After the filing of the petition by a guardian or a conservator for authority to purchase or acquire a home for the ward or an interest in a home for the ward in which a member of the ward's family may have an interest, the matter shall be set for a hearing before the probate court.

(D) If the fiduciary is a trustee appointed by and accountable to the probate court, the fiduciary shall invest the trust's assets pursuant to the requirements and standards set forth in the Ohio Uniform Prudent Investor Act.

Cite as R.C. § 2109.37

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 03-22-1999; 01-01-2007

2109.371 Additional eligible investments.

(A) In addition to those investments made eligible by section 2109.37 or 2109.372 of the Revised Code, investments may be made by a fiduciary other than a guardian under sections 5905.01 to 5905.19 of the Revised Code, and subject to the restriction placed on an administrator or executor by division (B) of section 2109.37 of the Revised Code, in any of the following kinds and classes of securities, provided that it may be lawfully sold in Ohio and investment is made only in those securities that would be acquired by prudent persons of discretion and intelligence in those matters who are seeking a reasonable income and the preservation of their capital:

(1) Securities of corporations organized and existing under the laws of the United States, the District of Columbia, any state of the United States, or any foreign government or state, including, but not limited to, bonds, debentures, notes, equipment trust obligations, or other evidences of indebtedness, and shares of common and preferred stocks of those corporations;

(2) Subject to division (C) of this section, collective investment funds established in accordance with section 1111.14 of the Revised Code or securities of any investment company, including any affiliated investment company, whether or not the fiduciary has invested other funds held by it in an agency or other nonfiduciary capacity in the securities of the same investment company or affiliated investment company. Those investments may be made regardless of the eligibility of the underlying assets held by the fund portfolios of the investment company.

(3) Bonds or other interest-bearing obligations of any state or territory of the United States, or of any county, city, village, school district, or other legally constituted political taxing subdivision of any state or territory of the United States, not otherwise eligible under division (A)(2) or (3) of section 2109.37 of the Revised Code, or of any foreign government;

(4) Debt or equity securities of foreign corporations that trade on recognized United States domiciled exchanges.

(B) No investment shall be made pursuant to this section that, at the time the investment is made, causes the aggregate market value of the investments, not made eligible by section 2109.37 or 2109.372 of the Revised Code, to exceed sixty per cent of the aggregate market value at that time of all the property of the fund held by the fiduciary. No sale or other liquidation of any investment shall be required solely because of any change in the relative market value of those investments made eligible by this section and those made eligible by section 2109.37 or 2109.372 of the Revised Code; provided that, in the event of a sale of investments authorized by this section, the proceeds from the sale may be reinvested in the kinds and classes of securities authorized by this section without regard to the percentage limitation provided in this division. In determining the aggregate market value of the property of a fund and the percentage of a fund to be invested under this section, a fiduciary may rely upon published market quotations as to those investments for which those quotations are available and upon the valuations of other investments that, in the fiduciary's best judgment, seem fair and reasonable according to available information.

(C)

(1)

(a) A fiduciary making an investment of trust funds in securities of an affiliated investment company, or a bank subsidiary corporation or other corporation owned or controlled by the bank holding company that owns or controls the fiduciary, may charge a reasonable fee for investment advisory, brokerage, transfer agency, registrar, management, or other similar services provided to an affiliated investment company. The fee may be in addition to the compensation to which the fiduciary is otherwise entitled to receive from the trust, provided that the fee is charged as a percentage of either asset value or income earned or actual amount charged and is disclosed at least annually by prospectus, account statement, or any other written means to all persons entitled to receive statements of account activity. The fiduciary shall disclose the relationship between the fiduciary and the affiliated investment company, at least annually by account statement, whether or not the fee is charged.

(b) A fiduciary making an investment of trust funds in securities of an affiliated investment company pursuant to division (A)(2) of this section shall, when providing any periodic account statements to the trust fund, report the net asset value of the shares comprising the investment of the trust funds in the affiliated investment company.

(c) If a fiduciary making an investment of trust funds in securities of an affiliated investment company pursuant to division (A)(2) of this section invests those funds in any mutual fund, the fiduciary shall disclose, in at least ten-point boldface type, by prospectus, account statement, or any other written means to all persons entitled to receive statements of account activity, that the mutual fund is not insured or guaranteed by the federal deposit insurance corporation or by any other government-sponsored agency of the federal government or of this state.

(2) Unless the investment of trust funds in securities of an affiliated investment company can be made under the terms of the instrument creating the trust, an exception to the investment of trust funds in securities of an affiliated investment company may be filed with the probate court. Any exception filed pursuant to this division shall be signed by all persons who would, at the time the exception is filed, be permitted to file an exception to an account pursuant to section 2109.33 of the Revised Code and shall state that all of those persons request that the current investment of trust funds in securities of an affiliated investment company be terminated within a reasonable time. If the probate court determines that the exception complies with the requirements of this division, the probate court shall establish a schedule for disposing of any current investments in securities of an affiliated investment company, and the fiduciary shall cause the trust to dispose of the investments in accordance with the schedule. The fiduciary shall not be liable for any loss incurred by the trust as a result of complying with division (C)(2) of this section.

(D) As used in this section, "affiliated investment company" and "reasonable fee" have the same meanings as in division (E) of section 1111.13 of the Revised Code.

Cite as R.C. § 2109.371

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 03-14-2003

2109.372 Holding cash or making temporary investments.

(A) As used in this section:

(1) "Short term trust-quality investment fund" means a short term investment fund that meets both of the following conditions:

(a) The fund may be either a collective investment fund established in accordance with section 1111.14 of the Revised Code or a registered investment company, including any affiliated investment company whether or not the fiduciary has invested other funds held by it in an agency or other nonfiduciary capacity in the securities of the same registered investment company or affiliated investment company.

(b) The fund is invested in any one or more of the following manners:

(i) In obligations of the United States or of its agencies;

(ii) In obligations of one or more of the states of the United States or their political subdivisions;

(iii) In obligations of foreign governments or states;

(iv) In variable demand notes, corporate money market instruments including, but not limited to, commercial paper rated at the time of purchase in either of the two highest classifications established by at least one nationally recognized standard rating service;

(v) Deposits in banks, savings banks, or savings and loan associations, whose deposits are insured by the federal deposit insurance corporation, or in credit unions insured by the national credit union administration or by a credit union share guaranty corporation established under Chapter 1761. of the Revised Code, if the rate of interest paid on those deposits is at least equal to the rate of interest generally paid by those banks, savings banks, savings and loan associations, or credit unions on deposits of similar terms or amounts;

(vi) In fully collateralized repurchase agreements or other evidences of indebtedness that are of trust quality and are payable on demand or have a maturity date consistent with the purpose of the fund and the duty of fiduciary prudence.

(2) "Registered investment company" means any investment company that is defined in and registered under sections 3 and 8 of the "Investment Company Act of 1940," 54 Stat. 789, 15 U.S.C.A. 80a-3 and 80a-8 .

(3) "Affiliated investment company" has the same meaning as in division (E)(1) of section 1111.13 of the Revised Code.

(B) A fiduciary is not required to invest cash that belongs to the trust and may hold that cash for the period prior to distribution if either of the following applies:

(1) The fiduciary reasonably expects to do either of the following:

(a) Distribute the cash to beneficiaries of the trust on a quarterly or more frequent basis;

(b) Use the cash for the payment of debts, taxes, or expenses of administration within the ninety-day period following the receipt of the cash by the fiduciary.

(2) Determined on the basis of the facilities available to the fiduciary and the amount of the income that reasonably could be earned by the investment of the cash, the amount of the cash does not justify the administrative burden or expense associated with its investment.

(C) If a fiduciary wishes to hold funds that belong to the trust in liquid form and division (B) of this section does not apply, the fiduciary may so hold the funds as long as they are temporarily invested as described in division (D) of this section.

(D)

(1) A fiduciary may make a temporary investment of cash that the fiduciary may hold uninvested in accordance with division (B) of this section, and shall make a temporary investment of funds held in liquid form pursuant to division (C) of this section, in any of the following investments, unless the governing instrument provides for other investments in which the temporary investment of cash or funds is permitted:

(a) A short term trust-quality investment fund;

(b) Direct obligations of the United States or of its agencies;

(c) A deposit with a bank, savings bank, savings and loan association, or credit union, including a deposit with the fiduciary itself or any bank subsidiary corporation owned or controlled by the bank holding company that owns or controls the fiduciary, whose deposits are insured by the federal deposit insurance corporation, if the rate of interest paid on that deposit is at least equal to the rate of interest generally paid by that bank, savings bank, savings and loan association, or credit union on deposits of similar terms or amounts.

(2) A fiduciary that makes a temporary investment of cash or funds pursuant to division (D)(1) of this section may charge a reasonable fee for the services associated with that investment. The fee shall be in addition to the compensation to which the fiduciary is entitled for ordinary fiduciary services.

(3) Fiduciaries that make one or more temporary investments of cash or funds pursuant to division (D)(1) of this section shall provide to the beneficiaries of the trusts involved, that are currently receiving income or have a right to receive income, a written disclosure of their temporary investment practices and, if applicable, the method of computing reasonable fees for their temporary investment services pursuant to division (D)(2) of this section. Fiduciaries may comply with this requirement in any appropriate written document, including, but not limited to, any periodic statement or account.

(4) A fiduciary that makes a temporary investment of cash or funds in an affiliated investment company pursuant to division (D)(1)(a) of this section shall, when providing any periodic account statements of its temporary investment practices, report the net asset value of the shares comprising the investment in the affiliated investment company.

(5) If a fiduciary that makes a temporary investment of cash or funds in an affiliated investment company pursuant to division (D)(1)(a) of this section invests in any mutual fund, the fiduciary shall provide to the beneficiaries of the trust involved, that are currently receiving income or have a right to receive income, a written disclosure, in at least ten-point boldface type, that the mutual fund is not insured or guaranteed by the federal deposit insurance corporation or by any other government agency or government-sponsored agency of the federal government or of this state.

Cite as R.C. § 2109.372

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 01-01-1997; 04-14-2006

2109.38 Retaining unauthorized investments.

Sections 2109.37 , 2109.371 , and 2109.372 of the Revised Code do not prohibit a fiduciary from retaining any part of a trust estate as received by the fiduciary even though that part is not of the class or percentage permitted to fiduciaries, or from retaining any investment made by the fiduciary after the investment ceases to be of a class or exceeds the percentage permitted by law, provided the circumstances are not such as to require the fiduciary to dispose of the investment in the performance of the fiduciary's duties.

Cite as R.C. § 2109.38

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-20-1987

2109.39 Receiving distribution in kind.

A fiduciary entitled to a distributive share of the assets of an estate or trust has the same right as other beneficiaries to accept or demand distribution in kind and may retain any security or investment so distributed to the fiduciary as though it were a part of the original estate received by the fiduciary.

Cite as R.C. § 2109.39

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-01-1953

2109.40 Participation in corporate reorganization.

Unless the instrument creating a trust forbids, a fiduciary may do all of the things that an individual holder might do with respect to securities held by the fiduciary, including the exercise or sale of subscription rights, the acceptance of new stock in the same corporation in place of the stock held, or in the event of reorganization, sale, or merger in a different corporation, and with the approval of the probate court, the investment of additional funds if required of all shareholders participating in a reorganization.

Cite as R.C. § 2109.40

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-01-1953

2109.41 Deposit of funds.

Immediately after appointment and throughout the administration of a trust, but subject to section 2109.372 of the Revised Code, every fiduciary, pending payment of current obligations of the fiduciary's trust, distribution, or investment pursuant to law, shall deposit all funds received by the fiduciary in the fiduciary's name as such fiduciary in one or more depositaries. Each depositary shall be a bank , savings bank, savings and loan association, or credit union located in this state. A corporate fiduciary, authorized to receive deposits of fiduciaries, may be the depository of funds held by it as fiduciary. All deposits made pursuant to this section shall be in such class of account as will be most advantageous to the trust, and each depositary shall pay interest at the highest rate customarily paid to its patrons on deposits in accounts of the same class.

The placing of funds in such depositaries under the joint control of the fiduciary and a surety on the bond of the fiduciary shall not increase the liability of the fiduciary.

Cite as R.C. § 2109.41

Effective Date: 10-20-1987; 04-14-2006

2109.42 Liability for failure to invest.

Subject to section 2109.372 of the Revised Code, a fiduciary who has funds belonging to a trust that are not required for payment of current obligations of the fiduciary's trust or distribution shall, unless otherwise ordered by the probate court, invest those funds within a reasonable time according to section 2109.37 or 2109.371 of the Revised Code. On failure to do so, the fiduciary shall account to the trust for any loss of interest that is found by the court to be due to the fiduciary's negligence.

Cite as R.C. § 2109.42

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-20-1987

2109.43 Personal use of trust property prohibited.

No fiduciary shall make any personal use of the funds or property belonging to a trust. For a violation of this section, the fiduciary and the fiduciary's bond shall be liable in an action for any loss occasioned by that use and for any additional amount by way of forfeiture, not exceeding the amount of the loss occasioned by the use, that may be fixed by the probate court hearing the case. Those amounts shall be payable for the benefit of the beneficiary, if living, and to the beneficiary's estate if the beneficiary is deceased. In addition to the penalties under this section, the court may remove the fiduciary pursuant to section 2109.24 of the Revised Code for fraudulent conduct or dereliction of duty related to the fiduciary's personal use or misuse of funds or property belonging to a trust. However, if all interested persons consent to the fiduciary's use of the property in a signed writing filed with the probate court, the fiduciary may make personal use of property belonging to the trust.

An action under this section shall be brought not later than one year after the termination of the trust or the discovery of that loss.

It is within the court's discretion, upon application, notice to interested persons, and a hearing, to allow the personal use of trust property by the fiduciary.

Cite as R.C. § 2109.43

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-01-1953

2109.44 Prohibited transactions; purchase of property.

(A) Fiduciaries shall not buy from or sell to themselves and shall not have in their individual capacities any dealings with the estate, except as expressly authorized by the instrument creating the trust and then only with the approval of the probate court in each instance. No corporate fiduciary, as defined in section 1101.01 of the Revised Code, that is not subject to examination or regulatory oversight by the superintendent of financial institutions, the comptroller of the currency, or the office of thrift supervision shall be permitted to deal with the estate, any power in the instrument creating the trust to the contrary notwithstanding. This section does not prohibit a fiduciary from making an advancement if the advancement has been expressly authorized by the instrument creating the trust or if the probate court approves or from engaging in any act authorized by this chapter.

(B) The fiduciary may petition the court for authority to purchase property of the estate if all of the following requirements are met:

(1) Written consent to the purchase is signed by the following:

(a) Each known heir whose interest in the estate would be affected by the proposed purchase;

(b) Each known devisee whose interest in the estate would be affected by the proposed purchase.

(2) The written consents are filed with the court.

(3) The purchase is shown to be to the advantage of the estate.

(C) The court shall deliver notice of the hearing on the petition to the heirs, devisees, or legatees of the estate or any interested person.

Cite as R.C. § 2109.44

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 01-01-1997

2109.45 Statement filed before private sale confirmed.

Before the probate court confirms a sale by an executor, administrator, guardian, assignee, or trustee made under an order allowing that officer to make a private sale, the court shall require that officer to file a statement indicating that the private sale was made after diligent endeavor to obtain the best price for the property and that the private sale was at the highest price the executor, administrator, guardian, assignee, or trustee could obtain for the property.

Cite as R.C. § 2109.45

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-08-1992

2109.46 Mortgage by fiduciary.

When it appears to be for the best interests of the entrusted estate, a fiduciary other than an executor or administrator may, with the approval of the probate court, borrow money and mortgage real property belonging to the entrusted estate, whether the real property was acquired by purchase or by descent and distribution.

The fiduciary proposing to borrow money shall file in the probate court that appointed the fiduciary a complaint describing all of the real property in the trust and stating the nature and amount of the encumbrances on that real property, the date those encumbrances became or will become due, and the rate of interest on those encumbrances. The complaint shall also contain a statement of the personal property in the trust, the income from the personal property, and the income from the real property in the trust. The complaint if filed by a guardian shall state the names, ages, and residences of the ward and next of kin known to be a resident of this state, including the spouse of the ward and persons holding liens on the real property unless the liens will be extinguished, all of whom shall be made defendants and be notified of the pendency and prayer of the complaint in the manner that the court directs. In addition , the complaint shall contain a statement of the nature of the incompetency or incapacity, if any, of the ward, whether temporary or confirmed and its duration. Except as provided in this section, the defendants and notice to the defendants shall be the same as though the real property proposed to be mortgaged were being sold by the fiduciary. The complaint shall set forth the purpose of the loan, the amount required for the loan, and any other facts that may be pertinent to the question whether the money should be borrowed and shall contain a prayer that the fiduciary be authorized to mortgage so much of the ward's lands as may be necessary to secure the loan.

Upon the filing of the complaint, the proceedings as to pleadings and proof shall be the same as on a complaint to sell real property belonging to the trust.

Cite as R.C. § 2109.46

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-01-1953

2109.47 Mortgage by a guardian.

Before the probate court makes an order authorizing a guardian to mortgage real property for the purpose of borrowing money to make repairs or improvements, the court shall appoint disinterested persons whose duty it shall be to investigate fully the necessity for and the advisability of making the repairs or improvements and their probable cost and to report their conclusions to the court.

Cite as R.C. § 2109.47

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-08-1992

2109.48 Amount of loan.

If on the final hearing of a fiduciary's complaint to borrow money and mortgage real property belonging to the trust it appears to be for the best interests of the trust that the prayer of the complaint be granted, the probate court shall fix the amount necessary to be borrowed, direct what real property shall be encumbered by mortgage to secure that amount, and issue an order to the fiduciary directing the fiduciary to ascertain and report to the court the rate of interest and the length of time for which the fiduciary can borrow that amount.

If the report of the fiduciary and the terms proposed are satisfactory to the court, they may be accepted and confirmed and the fiduciary ordered, as fiduciary, to execute a note for the amount to be borrowed and a mortgage on the real property so designated, which shall be a valid lien on the property. The fiduciary in no way shall be personally liable for the payment of any part of the sum borrowed, but the mortgaged real property alone shall be bound for its payment. The court shall direct the distribution of the fund and the fiduciary shall report to the court, for its approval, the execution of the notes and mortgage and the fiduciary's distribution of the fund.

Cite as R.C. § 2109.48

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-01-1953

2109.49 Investigation of trust.

The probate judge, if the probate judge considers it necessary or upon the written application of any party interested in the trust estate, may appoint a suitable person to investigate the administration of the trust or estate and report to the court. The expense of the investigation shall be taxed as costs against the party asking for the examination or the trust fund, as the court may decree. This section shall not apply to a corporate trustee that is subject to section 1111.28 of the Revised Code.

Cite as R.C. § 2109.49

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 01-01-1997

2109.50 Proceedings when assets concealed or embezzled.

Upon complaint made to the probate court of the county having jurisdiction of the administration of an estate, a testamentary trust, or a guardianship or of the county where a person resides against whom the complaint is made, by a person interested in the estate, testamentary trust, or guardianship or by the creditor of a person interested in the estate, testamentary trust, or guardianship against any person suspected of having concealed, embezzled, or conveyed away or of being or having been in the possession of any moneys, personal property, or choses in action of the estate, testamentary trust, or guardianship, the court shall by citation or other judicial order compel the person or persons suspected to appear before it to be examined, on oath, touching the matter of the complaint. If necessary , the citation or other judicial order may be issued into any county in the state and shall be served and returned by the officer to whom it is delivered. The officer to whom the process is delivered shall be liable for negligence in its service or return in a similar manner as sheriffs are liable for negligence in not serving or returning a capias issued upon an indictment. Before issuing an extra-county citation or other judicial order, the probate judge may require the complainant to post security with the probate court in an amount and in a form that the probate judge finds acceptable in order to cover the costs of the proceeding under this section, including in those costs a reasonable allowance for the travel expenses of the person or persons against whom an extra-county citation or other judicial order is to be issued. The security may be in the form of a bond, the amount, terms, conditions, and sureties of which shall be subject to the approval of the probate judge.

The probate court may initiate proceedings on its own motion.

The probate court shall promptly proceed to hear and determine the matter.

The examinations, including questions and answers, shall be reduced to writing, signed by the party examined, and filed in the probate court.

If required by either party, the probate court shall swear the witnesses who are offered by either party touching the matter of the complaint and cause the examination of every witness, including questions and answers, to be reduced to writing, signed by the witness, and filed in the probate court.

All costs of the proceedings, including the reasonable travel expenses of a person against whom an extra-county citation or judicial order is issued, shall be assessed against and paid by the party making the complaint, except as provided by section 2109.52 of the Revised Code.

Cite as R.C. § 2109.50

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 11-09-1959

2109.51 Imprisonment for disobeying citation.

If a person compelled under section 2109.50 of the Revised Code to appear for examination refuses to answer interrogatories propounded, the probate court shall commit the person to the county jail, and the person shall remain in close custody until the person submits to the court's order.

Cite as R.C. § 2109.51

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 11-09-1959

2109.52 Judgment on the complaint.

When passing on a complaint made under section 2109.50 of the Revised Code, the probate court shall determine, by the verdict of a jury if either party requires it or without if not required, whether the person accused is guilty of having concealed, embezzled, conveyed away, or been in the possession of moneys, personal property, or choses in action of the estate, testamentary trust, or guardianship. If the person is found guilty, the probate court shall assess the amount of damages to be recovered or the court may order the return of the specific thing concealed or embezzled or may order restoration in kind. The probate court may issue a citation or other judicial order into any county in this state that shall be served and returned as provided in section 2109.50 of the Revised Code. The citation or other judicial order shall require any person who claims any interest in the assets alleged to have been concealed, embezzled, conveyed, or held in possession to appear before the court. At the hearing, the court may hear and determine questions of title relating to those assets. In all cases, except when the person found guilty is the fiduciary, the probate court shall render judgment in favor of the fiduciary or if there is no fiduciary in this state, the probate court shall render judgment in favor of the state, against the person found guilty, for the amount of the moneys or the value of the personal property or choses in action concealed, embezzled, conveyed away, or held in possession, together with ten per cent penalty and all costs of the proceedings or complaint; except that the judgment shall be reduced to the extent of the value of any thing specifically restored or returned in kind as provided in this section.

If the person found guilty is the fiduciary, the probate court shall render judgment in favor of the state against the fiduciary for the amount of the moneys or the value of the personal property or choses in action concealed, embezzled, conveyed away, or held in possession, together with penalty and costs as provided in this section.

Cite as R.C. § 2109.52

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 11-09-1959

2109.53 Judgment against fiduciary - removal.

If a judgment is rendered against a fiduciary under section 2109.52 of the Revised Code, the fiduciary shall be removed by the probate court . If any portion of the estate, testamentary trust, or guardianship remains to be administered by the probate court at the time of the removal of the fiduciary, the court shall appoint a new fiduciary to continue the administrative process. A fiduciary that is removed shall not receive compensation for acting as fiduciary and shall be charged for the amount of the judgment. The fiduciary's property also shall be liable for the satisfaction of the judgment on execution issued on the judgment by the fiduciary's successor.

Cite as R.C. § 2109.53

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-01-1953

2109.54 Certificate of judgment - delivery to clerk of the court of common pleas.

The fiduciary in whose favor a judgment has been rendered by the probate court under section 2109.52 of the Revised Code shall deliver to the clerk of the court of common pleas a certificate of that judgment in accordance with section 2329.04 of the Revised Code . The probate court shall complete and deliver the certificate to the fiduciary on demand. The clerk shall issue an execution of the court of common pleas for the amount of the judgment and the costs that have accrued or that may accrue on the judgment. Thenceforth proceedings on execution shall be the same as if the judgment had been rendered in that court of common pleas.

Cite as R.C. § 2109.54

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-01-1953

2109.55 Judgment in favor of state.

If a judgment is rendered in the name of the state under section 2109.52 of the Revised Code and there is no fiduciary within this state, the prosecuting attorney shall cause the certificate provided for in section 2109.54 of the Revised Code to be filed in the clerk's office and proceed to execution on the judgment as provided in that section. The prosecuting attorney shall pay the money realized upon the execution to the county treasurer for the use of the estate, testamentary trust, or guardianship, reserving the compensation to the prosecuting attorney that the probate court allows.

Cite as R.C. § 2109.55

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-01-1953

2109.56 Conveyances.

All gifts, grants, or conveyances of real property, rents, or personal property and all bonds, judgments, or executions made or obtained with intent to avoid the purpose of the proceedings set forth in sections 2109.50 to 2109.55 of the Revised Code, or in contemplation of any examination or complaint provided for by those sections, shall be void.

Cite as R.C. § 2109.56

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-01-1953

2109.57 Appointment of trustee of funds of unknown or nonresident.

In any action or proceeding pending in a court of record, if it is made to appear to the court that any person entitled to all or a part of the proceeds of property sold in that action or proceeding is unknown or is a nonresident and not represented in the action or proceeding or that the person entitled cannot, at the time, definitely be ascertained, the probate court may appoint a trustee to whom the notes and mortgages for the unpaid part shall be made, delivered, and paid and to receive, hold, and manage the proceeds or part of the proceeds. The trustee shall collect the unpaid part of the proceeds of the property sold, by action or otherwise, and shall pay over that fund only on the order of the probate court appointing the trustee.

Payment to the trustee shall be a bar to any claim thereafter made by any person and the persons or corporations paying the money in no case shall be required to see to the application of the money paid.

If a person entitled to any portion of the money held by the trustee fails for seven or more years after the trustee's appointment to make claim to the money and to present the proof necessary to entitle the person to the money, the prosecuting attorney of the county in which the trustee was appointed shall collect it, with the interest accrued on the money, from the trustee and pay it into the county's treasury, to be placed to the credit of the general fund.

Upon application to the probate court that appointed the trustee and presentment of the proof necessary to entitle the person to the money, the court shall order the payment of the money to the person in whole or part, less the costs of collection by the prosecuting attorney . The person, on the judge's certificate, shall be given a warrant for the money by the county auditor.

Cite as R.C. § 2109.57

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-01-1953

2109.58 Inventory by fiduciary.

Each fiduciary as to whom definite provision is not made in sections 2111.14 and 2115.02 of the Revised Code shall make and file within three months after the fiduciary's appointment a full inventory of the real and personal property to be entrusted with the fiduciary, its value, and the value of the yearly rent of the real property.

Except as provided by section 2115.16 of the Revised Code, exceptions to the inventory of a fiduciary may be filed at any time within six months after the return of the inventory by any person interested in the entrusted property or in any of the property included in the inventory, but the six-month period shall not apply in case of fraud or concealment of assets. At the hearing, the fiduciary and any witness may be examined under oath. The probate court shall enter its finding on the journal and tax the costs as may be equitable.

Cite as R.C. § 2109.58

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-08-1992

2109.59 Failure of fiduciary to make payment or distribution.

If a fiduciary, upon demand, refuses or neglects to pay any creditor whose claim has been allowed by the fiduciary and not subsequently rejected or to pay any creditor or make distribution to any person interested in the estate whose claim or interest has been established by judgment, decree, or order of court, including an order of distribution, the creditor or other person may file a petition against the fiduciary in the probate court from which the fiduciary received the fiduciary's appointment to enforce the payment or distribution, briefly setting forth in the petition the amount and nature of the creditor's or other person's claim or interest. The petition shall not be filed against an executor or administrator until the expiration of the period prescribed in section 2117.30 of the Revised Code.

When the petition is filed, the probate court shall issue a citation to the fiduciary setting forth the filing of the petition and the nature of the claim of the petitioner and commanding the fiduciary to appear before the court on the return day to answer and show cause why a judgment should not be rendered or order entered against the fiduciary. The citation shall be returnable not less than twenty nor more than forty days from its date and shall be served and returned by an officer as in the case of summons. The citation may issue to any county in the state.

On the return of the citation, the cause shall be set for hearing, unless for good cause shown it is continued. The probate court may hear and determine all questions necessary to ascertain and fix the amount due from the fiduciary to the petitioner and render the judgment or make the order that may be proper. If necessary, the court may hear, determine, and settle the rights and claims of all parties interested in the subject matter of the petition. For that purpose the probate court may allow all parties in interest to be made parties to the petition by amended, supplemental, or cross-petition. The court shall cause notice to be served on all the parties in the manner provided in this section for service of the citation upon the fiduciary.

In any proceeding under this section, the sureties on the bond of the fiduciary, if made parties to the proceeding, may make any defense that the fiduciary could make and the court may render the judgment or make the order with respect to the sureties that may be proper.

Cite as R.C. § 2109.59

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-01-1953

2109.60 Probate court may send case to the court of common pleas.

When a proceeding set forth in section 2109.59 of the Revised Code is pending in the probate court, the court, on motion of any party or on the court's own motion, may transfer the cause to the court of common pleas , and the court of common pleas shall hear, settle, and determine all issues as provided in that section. In case of the transfer, the probate court shall prepare a transcript of the proceedings in the cause, so far as it has progressed, that, with the petition and other papers in the proceedings, shall be filed with the clerk of the court of common pleas.

Cite as R.C. § 2109.60

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-01-1953

2109.61 Bond - parties to suit.

An action may be prosecuted on the bond of a fiduciary against any one or more of the obligors on the bond by any person who has been injured by reason of the breach of any condition of the bond. The action shall be prosecuted for the benefit of all persons who are interested in the estate and who have been similarly injured. Any such person or any obligor on the bond who is not already a party to the action may intervene in the action or be made a party to the action by supplemental, amended, or cross-petition. Notice of any action or proceeding against the bonded fiduciary shall be given to the surety.

If a surety on the bond of a fiduciary is not made a party to an action or proceeding against the fiduciary, the fact that a judgment was rendered or an order was entered against the fiduciary shall constitute only prima-facie evidence of the justice and validity of the claim in an action subsequently brought against the sureties on the bond of the fiduciary.

Cite as R.C. § 2109.61

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-01-1953

2109.62 Court termination of trust.

(A)

(1) Upon the filing of a motion by a trustee with the court that has jurisdiction over the trust, upon the provision of reasonable notice to all beneficiaries who are known and in being and who have vested or contingent interests in the trust, and after holding a hearing, the court may terminate the trust, in whole or in part, if it determines that all of the following apply:

(a) It is no longer economically feasible to continue the trust.

(b) The termination of the trust is for the benefit of the beneficiaries.

(c) The termination of the trust is equitable and practical.

(d) The current value of the trust is less than one hundred thousand dollars.

(2) The existence of a spendthrift or similar provision in a trust instrument or will does not preclude the termination of a trust pursuant to this section.

(B) If property is to be distributed from an estate being probated to a trust and the termination of the trust pursuant to this section does not clearly defeat the intent of the testator, the probate court has jurisdiction to order the outright distribution of the property or to make the property custodial property under sections 5814.01 to 5814.09 of the Revised Code. A probate court may so order whether the motion for the order is made by an inter vivos trustee named in the will of the decedent or by a testamentary trustee.

(C) Upon the termination of a trust pursuant to this section, the probate court shall order the distribution of the trust estate in accordance with any provision specified in the trust instrument for the premature termination of the trust. If there is no provision of that nature in the trust instrument, the probate court shall order the distribution of the trust estate among the beneficiaries of the trust in accordance with their respective beneficial interests and in a manner that the court determines to be equitable. For purposes of ordering the distribution of the trust estate among the beneficiaries of the trust under this division, the court shall consider all of the following:

(1) The existence of any agreement among the beneficiaries with respect to their beneficial interests;

(2) The actuarial values of the separate beneficial interests of the beneficiaries;

(3) Any expression of preference of the beneficiaries that is contained in the trust instrument.

Cite as R.C. § 2109.62

Amended by 129th General AssemblyFile No.52, SB 124, §1, eff. 1/13/2012.

Effective Date: 10-21-2003; 01-01-2007

2109.66, 2109.67 [Repealed].

Cite as R.C. § 2109.66, 2109.67

Effective Date: 01-01-2003

2109.68 Allocation of receipts and expenditures between principal and income.

Allocation of receipts and expenditures between principal and income by an executor, administrator, or testamentary trustee shall be as prescribed in sections 5812.01 to 5812.52 of the Revised Code.

Cite as R.C. § 2109.68

Effective Date: 01-01-2003; 01-01-2007

2109.69 Application of trust code provisions to testamentary trusts.

(A) Subject to division (B) of this section, the provisions of Chapters 5801. to 5811. of the Revised Code apply to testamentary trusts except to the extent that any provision of those chapters conflicts with any provision of Chapter 2109. of the Revised Code, or with any other provision of the Revised Code, that applies specifically to testamentary trusts and except to the extent that any provision of Chapters 5801. to 5811. of the Revised Code is clearly inapplicable to testamentary trusts.

(B) Section 5808.13 of the Revised Code applies to testamentary trusts whether or not that section conflicts with any provision of Chapter 2109. of the Revised Code or any other provision of the Revised Code that applies specifically to testamentary trusts.

Cite as R.C. § 2109.69

Effective Date: 01-01-2007