OHIO’S NEW OMNIBUS PROBATE BILL
Post on April 2nd, 2019
Ohio House Bill 595, the Omnibus Probate Bill, became effective March 22, 2019. This legislation made important changes affecting attorneys who practice in the area of probate, estate and trust law.
- Special Needs Trust 5163.21 ORC Permits nonelderly, disabled applicants or recipients of Medicaid benefits or their spouses to establish their own special needs trust.
- Ante-Mortem Validation 5817.02 & 5817.03 ORC Allows a testator of a will and/or a settlor of a trust to file a declaratory judgment to declare the validity of a will/trust during her/his lifetime prior to death.
- Anti-Lapse 2107.52 ORC Revises the statute to provide that if the devise is in the form of a class gift…that includes more than one generation, a substitute gift is created in the surviving descendants of any deceased devisee.
- Electronic Wills 2107.18, 2107.20, 2129.05 ORC Provides the probate court shall admit a will to probate if it complies with the law in force at the time of the execution of the will in the jurisdiction in which the testator was physically present when it was executed
- Incorporation by Reference 2107.05 ORC Indicates that if a testator intends to incorporate a trust instrument in a will, the testator’s will shall manifest that intent through the use of the term “incorporate,” “made a part of,” or similar language. In the absence of such clear and express intent, a trust instrument shall not be incorporated into or made a part of the will. This is intended to abrogate the holdings of the Ohio Supreme Court in Hageman v. Cleveland Trust Company, 45 Ohio St.2d 178 (1976) and the Ohio Second District Court of Appeals in Gehrke v. Senkiw, 2016 Ohio 2657 (2016).
- IOLTA Accounts 2109.41 & 4705.09 ORC Allows attorneys to hold nominal funds of fiduciary clients in an IOLTA and eliminates requirement for court approval or separate IOLTA account.
- Arbitration of Trust Disputes 5802.05 ORC Provides that trust terms may require arbitration of disputes, other than disputes of the validity of all or part of trust and not applicable to testamentary trust.
- Medical Records 2113.032 ORC New statute that will allow any person eligible to be appointed as a personal representative of an estate or named as executor to file an application with the probate court for release of the decedent’s medical records and medical billing records for use in evaluating a potential wrongful death, personal injury, or survivorship action on behalf of the decedent, without opening an estate.
- Fiduciary Attorney-Client Privilege 5815.16 ORC Provides that any communication between an attorney and a client who is acting as a fiduciary is privileged and protected from disclosure to third parties to whom the fiduciary owes fiduciary duties to the same extent as if the client was not acting as a fiduciary, abrogating Dueck v The Clifton Colony Club.
The Ohio State Bar Association will present a CLE course on this important new legislation on April 10, 2019. To learn more about this CLE, click here.
If you have questions about this or other topics, please feel free to contact me.
Gretchen Koehler Mote, Esq.,
Director of Loss Prevention