Chapter 5817: DETERMINATION OF VALIDITY OF TRUST OR WILL DURING LIFETIME

5817.01 Definitions.

As used in this chapter:

(A)

(1) "Beneficiary under a trust" means either of the following:

(a) Any person that has a present or future beneficial interest in a trust, whether vested or contingent;

(b) Any person that, in a capacity other than that of trustee, holds a power of appointment over trust property, but does not include the class of permitted appointees among whom the power holder may appoint.

(2) "Beneficiary under a trust" includes a charitable organization that is expressly designated in the terms of the trust to receive distributions, but does not include any charitable organization that is not expressly designated in the terms of the trust to receive distributions, but to whom the trustee may in its discretion make distributions.

(B)

(1) "Beneficiary under a will" means either of the following:

(a) Any person designated in a will to receive a testamentary disposition of real or personal property;

(b) Any person that, in a capacity other than that of executor, holds a power of appointment over estate assets, but does not include the class of permitted appointees among whom the power holder may appoint.

(2) "Beneficiary under a will" includes a charitable organization that is expressly designated in the terms of the will to receive testamentary distributions, but does not include any charitable organization that is not expressly designated in the terms of the will to receive distributions, but to whom the executor may in its discretion make distributions.

(C) "Court" means the probate court of the county in which the complaint under section 5817.02 or 5817.03 of the Revised Code is filed or the general division of the court of common pleas to which the probate court transfers the proceeding under division (A) of section 5817.04 of the Revised Code.

(D) "Related trust" means a trust for which both of the following apply:

(1) The testator is the settlor of the trust.

(2) The trust is named as a beneficiary in the will in accordance with section 2107.63 of the Revised Code.

(E) "Related will" means a will for which both of the following apply:

(1) The testator is the settlor of a trust.

(2) The will names the trust as a beneficiary in accordance with section 2107.63 of the Revised Code.

(F) "Trust" means an inter vivos revocable or irrevocable trust instrument to which, at the time the complaint for declaration of validity is filed under section 5817.03 of the Revised Code, either of the following applies:

(1) The settlor resides in, or is domiciled in, this state.

(2) The trust's principal place of administration is in this state.


Added by 132nd General Assembly File No. TBD, HB 595, §1, eff. 3/22/2019.

5817.02 Action by testator.

(A) A testator may file a complaint with the probate court to determine before the testator's death that the testator's will is a valid will subject only to subsequent revocation or modification of the will. The right to file a complaint for a determination of the validity of a testator's will under this chapter, or to voluntarily dismiss a complaint once filed, is personal to the testator and may not be exercised by the testator's guardian or an agent under the testator's power of attorney.

(B) A testator who desires to obtain a validity determination as to the testator's will shall file a complaint to determine the validity of both the will and any related trust.

(C) The failure of a testator to file a complaint for a judgment declaring the validity of a will shall not be construed as evidence or an admission that the will is not valid.

(D) A complaint for a determination of the validity of a testator's will shall be accompanied by an express written waiver of the testator's physician-patient privilege provided in division (B) of section 2317.02 of the Revised Code.


Added by 132nd General Assembly File No. TBD, HB 595, §1, eff. 3/22/2019.

5817.03 Action by settlor.

(A) A settlor may file a complaint with the probate court to determine before the settlor's death that the settlor's trust is valid and enforceable under its terms, subject only to a subsequent revocation or modification of the trust. The right to file a complaint for a determination of the validity of a settlor's trust under this chapter, or to voluntarily dismiss a complaint once filed, is personal to the settlor and may not be exercised by the settlor's guardian or an agent under the settlor's power of attorney.

(B) A settlor who desires to obtain a validity determination as to the settlor's trust shall file a complaint to determine the validity of both the trust and the related will.

(C) The failure of a settlor to file a complaint for a judgment declaring the validity of a trust shall not be construed as evidence or an admission that the trust is not valid.

(D) A complaint for a determination of the validity of a settlor's trust shall be accompanied by an express written waiver of the settlor's physician-patient privilege provided in division (B) of section 2317.02 of the Revised Code.


Added by 132nd General Assembly File No. TBD, HB 595, §1, eff. 3/22/2019.

5817.04 Jurisdiction; venue.

(A) A complaint to determine the validity of a will or a trust shall be filed with the probate court. The probate judge, upon the motion of a party or the judge's own motion, may transfer the proceeding to the general division of the court of common pleas.

(B) The venue for a complaint under section 5817.02 of the Revised Code is either of the following:

(1) The probate court of the county in this state where the testator is domiciled;

(2) If the testator is not domiciled in this state, the probate court of any county in this state where any real property or personal property of the testator is located or, if there is no such property, the probate court of any county in this state.

(C) The venue for a complaint under section 5817.03 of the Revised Code is either of the following:

(1) The probate court of the county in this state where the settlor resides or is domiciled;

(2) If the settlor does not reside or is not domiciled in this state, the probate court of the county in this state in which the trust's principal place of administration is located.


Added by 132nd General Assembly File No. TBD, HB 595, §1, eff. 3/22/2019.

5817.05 Testator complaint; party defendants.

(A) A complaint under section 5817.02 of the Revised Code shall name as party defendants all of the following, as applicable:

(1) The testator's spouse;

(2) The testator's children;

(3) The testator's heirs who would take property pursuant to section 2105.06 of the Revised Code had the testator died intestate at the time the complaint is filed;

(4) The testator's beneficiaries under the will;

(5) Any beneficiary under the testator's most recent prior will.

(B) A complaint under section 5817.02 of the Revised Code may name as a party defendant any other person that the testator believes may have a pecuniary interest in the determination of the validity of the testator's will.

(C) A complaint under section 5817.02 of the Revised Code may contain all or any of the following:

(1) A statement that a copy of the will has been filed with the court;

(2) A statement that the will is in writing;

(3) A statement that the will was signed by the testator, or was signed in the testator's name by another person in the testator's conscious presence and at the testator's express direction;

(4) A statement that the will was signed in the conscious presence of the testator by two or more competent individuals, each of whom either witnessed the testator sign the will, or heard the testator acknowledge signing the will;

(5) A statement that the will was executed with the testator's testamentary intent;

(6) A statement that the testator had testamentary capacity;

(7) A statement that the testator executed the will free from undue influence, not under restraint or duress, and in the exercise of the testator's free will;

(8) A statement that the execution of the will was not the result of fraud or mistake;

(9) The names and addresses of the testator and all of the defendants and, if any of the defendants are minors, their ages;

(10) A statement that the will has not been revoked or modified;

(11) A statement that the testator is familiar with the contents of the will.


Added by 132nd General Assembly File No. TBD, HB 595, §1, eff. 3/22/2019.

5817.06 Settlor complaint; party defendants.

(A) A complaint under section 5817.03 of the Revised Code shall name as party defendants the following, as applicable:

(1) The settlor's spouse;

(2) The settlor's children;

(3) The settlor's heirs who would take property pursuant to section 2105.06 of the Revised Code had the settlor died intestate at the time the complaint is filed;

(4) The trustee or trustees under the trust;

(5) The beneficiaries under the trust;

(6) If the trust amends, amends and restates, or replaces a prior trust, any beneficiary under the settlor's most recent prior trust.

(B) A complaint under section 5817.03 of the Revised Code may name as a party defendant any other person that the settlor believes may have a pecuniary interest in the determination of the validity of the settlor's trust.

(C) A complaint under section 5817.03 of the Revised Code may contain all or any of the following:

(1) A statement that a copy of the trust has been filed with the court;

(2) A statement that the trust is in writing and was signed by the settlor;

(3) A statement that the trust was executed with the intent to create a trust;

(4) A statement that the settlor had the legal capacity to enter into and establish the trust;

(5) A statement that the trust has a definite beneficiary or is one of the following:

(a) A charitable trust;

(b) A trust for the care of an animal as provided in section 5804.08 of the Revised Code;

(c) A trust for a noncharitable purpose as provided in section 5804.09 of the Revised Code.

(6) A statement that the trustee of the trust has duties to perform;

(7) A statement that the same person is not the sole trustee and sole beneficiary of the trust;

(8) A statement that the settlor executed the trust free from undue influence, not under restraint or duress, and in the exercise of the settlor's free will;

(9) A statement that execution of the trust was not the result of fraud or mistake;

(10) The names and addresses of the settlor and all of the defendants and, if any of the defendants are minors, their ages;

(11) A statement that the trust has not been revoked or modified;

(12) A statement that the settlor is familiar with the contents of the trust.


Added by 132nd General Assembly File No. TBD, HB 595, §1, eff. 3/22/2019.

5817.07 Service of process.

(A) Service of process, with a copy of the complaint and the will, and a copy of the related trust, if applicable, shall be made on every party defendant named in the complaint filed under section 5817.02 of the Revised Code, as provided in the applicable Rules of Civil Procedure.

(B) Service of process, with a copy of the complaint and the trust, and a copy of the related will, if applicable, shall be made on every party defendant named in the complaint filed under section 5817.03 of the Revised Code, as provided in the applicable Rules of Civil Procedure.


Added by 132nd General Assembly File No. TBD, HB 595, §1, eff. 3/22/2019.

5817.08 Hearing.

(A) After a complaint is filed under section 5817.02 or 5817.03 of the Revised Code, the court shall fix a time and place for a hearing.

(B) Notice of the hearing shall be given to the testator or settlor, as applicable, and to all party defendants, as provided in the applicable Rules of Civil Procedure.

(C) The hearing shall be adversarial in nature and shall be conducted pursuant to sections 2101.31 and 2721.10 of the Revised Code, except as otherwise provided in this chapter.


Added by 132nd General Assembly File No. TBD, HB 595, §1, eff. 3/22/2019.

5817.09 Burden of proof.

(A) The testator or settlor has the burden of establishing prima facie proof of the execution of the will or trust, as applicable. A person who opposes the complaint has the burden of establishing one or more of the following:

(1) The lack of testamentary intent or the intent to create a trust, as the case may be;

(2) The lack of the testator's testamentary capacity, or the settlor's legal capacity to enter into and establish the trust;

(3) Undue influence, restraint, or duress on the testator or settlor;

(4) Fraud or mistake in the execution of the will or trust;

(5) Revocation of the will or trust.

(B) A party to the proceeding has the ultimate burden of persuasion as to the matters for which the party has the initial burden of proof.


Added by 132nd General Assembly File No. TBD, HB 595, §1, eff. 3/22/2019.

5817.10 Declaration of validity.

(A)

(1) The court shall declare the will valid if it finds all of the following:

(a) The will was properly executed pursuant to section 2107.03 of the Revised Code or under any prior law of this state that was in effect at the time of execution.

(b) The testator had the requisite testamentary capacity, was free from undue influence, and was not under restraint or duress.

(c) The execution of the will was not the result of fraud or mistake.

(2) After the testator's death, unless the will is modified or revoked after the court's declaration under division (A)(1) of this section, the will has full legal effect as the instrument of the disposition of the testator's estate and shall be admitted to probate upon request.

(B)

(1) The court shall declare the trust valid if it finds all of the following:

(a) The trust meets the requirements of section 5804.02 of the Revised Code.

(b) The settlor had the legal capacity to enter into and establish the trust, was free from undue influence, and was not under restraint or duress.

(c) The execution of the trust was not the result of fraud or mistake.

(2) Unless the trust is modified or revoked after the court's declaration, the trust has full legal effect.

(C) The court may, if it finds the will or trust to be valid, attach a copy of the valid document to the court's judgment entry, but failure to do so shall not affect the determination of validity of the will or trust.


Added by 132nd General Assembly File No. TBD, HB 595, §1, eff. 3/22/2019.

5817.11 Effect of declaration.

(A) Unless the will or trust is modified or revoked, and except as otherwise provided in this section, no person may contest the validity of a will or trust that is declared valid in a proceeding pursuant to this chapter.

(B) The failure to name a necessary defendant under division (A) of section 5817.05 of the Revised Code is not jurisdictional. A declaration of a will's validity under this chapter shall be binding upon all defendants who were named or represented, and properly served pursuant to division (A) of section 5817.07 of the Revised Code, notwithstanding the failure to name a necessary defendant. However, if a person is one who should have been named a party defendant in the action in which the will was declared valid and if the person was not named a defendant and properly served in that action, that person, after the testator's death, may contest the validity of a will declared valid.

(C) The failure to name a necessary defendant under division (A) of section 5817.06 of the Revised Code is not jurisdictional. A declaration of a trust's validity under this chapter shall be binding upon all defendants who were named or represented, and properly served pursuant to division (B) of section 5817.07 of the Revised Code, notwithstanding the failure to name a necessary defendant. However, if a person is one who should have been named a party defendant in the action in which the trust was declared valid and if the person was not named a defendant and properly served in that action, that person may contest the validity of a trust declared valid.

(D) In determining whether a person was a party defendant and properly served in an action to declare a will or trust valid under this chapter, the representation rules of Chapter 5803. of the Revised Code shall be applied, and a person represented in the action under those rules is bound by the declaration of validity even if, by the time of the testator's death, or the challenge to the trust, the representing person has died or would no longer be able to represent the person to be represented in the proceeding under this chapter.


Added by 132nd General Assembly File No. TBD, HB 595, §1, eff. 3/22/2019.

5817.12 Subsequent modification of will.

(A) After a declaration of a will's validity under division (A)(1) of section 5817.10 of the Revised Code, the will may be modified by a later will or codicil executed according to the laws of this state or another state, and the will may be revoked under section 2107.33 of the Revised Code or other applicable law.

(B) The revocation by a later will, or other document under section 2107.33 of the Revised Code, of a will that has been declared valid under division (A)(1) of section 5817.10 of the Revised Code does not affect the will or the prior declaration of its validity if the later will or other document is found by a court of competent jurisdiction to be invalid due to the testator's lack of testamentary capacity, or undue influence, restraint, or duress on the testator, or otherwise.

(C) The amendment by a later codicil of a will that has been declared valid under division (A)(1) of section 5817.10 of the Revised Code does not affect the will or the prior declaration of its validity except as provided by the codicil. However, the codicil is not considered validated under this chapter unless its validity is also declared as provided in this chapter.


Added by 132nd General Assembly File No. TBD, HB 595, §1, eff. 3/22/2019.

5817.13 Subsequent modification of trust.

(A) After a declaration of a trust's validity under division (B)(1) of section 5817.10 of the Revised Code, the trust may be modified, terminated, revoked, or reformed under sections 5804.10 to 5804.16 of the Revised Code, or other applicable law.

(B) The modification, termination, revocation, or reformation by a new trust or other document of a trust that has been declared valid under division (B)(1) of section 5817.10 of the Revised Code does not affect the trust or the prior declaration of its validity if the later trust or other document is found by a court of competent jurisdiction to be invalid due to the settlor's lack of capacity, or undue influence, restraint, or duress on the settlor, or otherwise.

(C) An amendment of a trust that has been declared valid under division (B)(1) of section 5817.10 of the Revised Code does not affect the trust or the prior declaration of its validity except as provided by the amendment. However, the amendment is not considered validated under this chapter unless its validity is also declared as provided in this chapter.


Added by 132nd General Assembly File No. TBD, HB 595, §1, eff. 3/22/2019.

5801.01 General definitions.

As used in Chapters 5801. to 5811. of the Revised Code:

(A) "Action," with respect to an act of a trustee, includes a failure to act.

(B) "Ascertainable standard" means a standard relating to an individual's health, education, support, or maintenance within the meaning of section 2041(b)(1)(A) or 2514(c)(1) of the Internal Revenue Code.

(C) "Beneficiary" means a person that has a present or future beneficial interest in a trust, whether vested or contingent, or that, in a capacity other than that of trustee, holds a power of appointment over trust property, or a charitable organization that is expressly designated in the terms of the trust to receive distributions. "Beneficiary" does not include any charitable organization that is not expressly designated in the terms of the trust to receive distributions, but to whom the trustee may in its discretion make distributions.

(D) "Beneficiary surrogate" means a person, other than a trustee, designated by the settlor in the trust instrument to receive notices, information, and reports otherwise required to be provided to a current beneficiary under divisions (B)(8) and (9) of section 5801.04 of the Revised Code.

(E) "Charitable trust" means a trust, or portion of a trust, created for a charitable purpose described in division (A) of section 5804.05 of the Revised Code.

(F) "Current beneficiary" means a beneficiary that, on the date the beneficiary's qualification is determined, is a distributee or permissible distributee of trust income or principal.

(G) "Environmental law" means a federal, state, or local law, rule, regulation, or ordinance relating to protection of the environment.

(H) "Guardian of the estate" means a guardian appointed by a court to administer the estate of any individual or to serve as conservator of the property of an individual eighteen years of age or older under section 2111.021 of the Revised Code.

(I) "Guardian of the person" means a guardian appointed by a court to make decisions regarding the support, care, education, health, and welfare of any individual or to serve as conservator of the person of an individual eighteen years of age or older under section 2111.021 of the Revised Code. "Guardian of the person" does not include a guardian ad litem.

(J) "Internal Revenue Code" means the "Internal Revenue Code of 1986," 100 Stat. 2085, 26 U.S.C. 1 et seq., as amended.

(K) "Interests of the beneficiaries" means the beneficial interests provided in the terms of the trust.

(L) "Jurisdiction," with respect to a geographic area, includes a state or country.

(M) "Mandatory distribution" means a distribution of income or principal, including a distribution upon termination of the trust, that the trustee is required to make to a beneficiary under the terms of the trust. Mandatory distributions do not include distributions that a trustee is directed or authorized to make pursuant to a support or other standard, regardless of whether the terms of the trust provide that the trustee "may" or "shall" make the distributions pursuant to a support or other standard.

(N) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government, governmental agency or instrumentality, public corporation, or any other legal or commercial entity.

(O) "Power of withdrawal" means a presently exercisable general power of appointment other than a power exercisable by a trustee that is limited by an ascertainable standard or that is exercisable by another person only upon consent of the trustee or a person holding an adverse interest.

(P) "Property" means anything or any interest in anything that may be the subject of ownership.

(Q) "Qualified beneficiary" means a beneficiary to whom, on the date the beneficiary's qualification is determined, any of the following applies:

(1) The beneficiary is a distributee or permissible distributee of trust income or principal.

(2) The beneficiary would be a distributee or permissible distributee of trust income or principal if the interests of the distributees described in division (Q)(1) of this section terminated on that date, but the termination of those interests would not cause the trust to terminate.

(3) The beneficiary would be a distributee or permissible distributee of trust income or principal if the trust terminated on that date.

(R) "Revocable," as applied to a trust, means revocable at the time of determination by the settlor alone or by the settlor with the consent of any person other than a person holding an adverse interest. A trust's characterization as revocable is not affected by the settlor's lack of capacity to exercise the power of revocation, regardless of whether an agent of the settlor under a power of attorney, or a guardian of the person or estate of the settlor, is serving.

(S) "Settlor" means a person, including a testator, who creates, or contributes property to, a trust. If more than one person creates or contributes property to a trust, each person is a settlor of the portion of the trust property attributable to that person's contribution except to the extent another person has the power to revoke or withdraw that portion.

(T) "Spendthrift provision" means a term of a trust that restrains both voluntary and involuntary transfer of a beneficiary's interest.

(U) "State" means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, a territory or possession of the United States, or an Indian tribe or band recognized by federal law or formally acknowledged by a state.

(V) "Terms of a trust" means the manifestation of the settlor's intent regarding a trust's provisions as expressed in the trust instrument or as may be established by other evidence that would be admissible in a judicial proceeding.

(W) "Trust instrument" means an instrument executed by the settlor that contains terms of the trust and any amendments to that instrument.

(X) "Trustee" includes an original, additional, and successor trustee and a cotrustee.

(Y)

(1) "Wholly discretionary trust" means a trust to which all of the following apply:

(a) The trust is irrevocable.

(b) Distributions of income or principal from the trust may or shall be made to or for the benefit of the beneficiary only at the trustee's discretion.

(c) The beneficiary does not have a power of withdrawal from the trust.

(d) The terms of the trust use "sole," "absolute," "uncontrolled," or language of similar import to describe the trustee's discretion to make distributions to or for the benefit of the beneficiary.

(e) The terms of the trust do not provide any standards to guide the trustee in exercising its discretion to make distributions to or for the benefit of the beneficiary.

(f) The beneficiary is not the settlor, the trustee, or a cotrustee.

(g) The beneficiary does not have the power to become the trustee or a cotrustee.

(2) A trust may be a wholly discretionary trust with respect to one or more but less than all beneficiaries.

(3) If a beneficiary has a power of withdrawal, the trust may be a wholly discretionary trust with respect to that beneficiary during any period in which the beneficiary may not exercise the power. During a period in which the beneficiary may exercise the power, both of the following apply:

(a) The portion of the trust the beneficiary may withdraw may not be a wholly discretionary trust with respect to that beneficiary;

(b) The portion of the trust the beneficiary may not withdraw may be a wholly discretionary trust with respect to that beneficiary.

(4) If the beneficiary and one or more others have made contributions to the trust, the portion of the trust attributable to the beneficiary's contributions may not be a wholly discretionary trust with respect to that beneficiary, but the portion of the trust attributable to the contributions of others may be a wholly discretionary trust with respect to that beneficiary. If a beneficiary has a power of withdrawal, then upon the lapse, release, or waiver of the power, the beneficiary is treated as having made contributions to the trust only to the extent the value of the property affected by the lapse, release, or waiver exceeds the greatest of the following amounts:

(a) The amount specified in section 2041(b)(2) or 2514(e) of the Internal Revenue Code;

(b) If the donor of the property subject to the beneficiary's power of withdrawal is not married at the time of the transfer of the property to the trust, the amount specified in section 2503(b) of the Internal Revenue Code;

(c) If the donor of the property subject to the beneficiary's power of withdrawal is married at the time of the transfer of the property to the trust, twice the amount specified in section 2503(b) of the Internal Revenue Code.

(5) Notwithstanding divisions (Y)(1)(f) and (g) of this section, a trust may be a wholly discretionary trust if the beneficiary is, or has the power to become, a trustee only with respect to the management or the investment of the trust assets, and not with respect to making discretionary distribution decisions. With respect to a trust established for the benefit of an individual who is blind or disabled as defined in 42 U.S.C. 1382c(a)(2) or (3), as amended, a wholly discretionary trust may include either or both of the following:

(a) Precatory language regarding its intended purpose of providing supplemental goods and services to or for the benefit of the beneficiary, and not to supplant benefits from public assistance programs;

(b) A prohibition against providing food and shelter to the beneficiary.


Effective Date: 01-01-2007; 2008 HB499 09-12-2008 .