January 20, 2017
The recent enactment of Ohio House Bills 432 and 451 and Senate Bill 232, effective come March and April, will bring changes to Ohio law impacting estate administration and health care issues.
1. House Bill 432, called the Omnibus Probate Bill, makes the most sweeping amendments, critical among them the inclusion of Ohio’s Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA). RUFADAA provides fiduciaries with specific rights to access digital assets after the owner’s death.
Consider the number of digital accounts consumers and businesses use (e.g., credit cards, bank accounts, brokerage accounts, email, PayPal) and the variety of passwords encouraged for security. Before this change, fiduciaries could not lawfully access a decedent’s digital assets.
Under RUFADAA, fiduciaries are given access to digital accounts under the same legal standards applied to tangible property. Key provisions include:
- An account holder may give direction for disclosure via online tools or more traditional methods, such as a will or power of attorney.
- The custodian of a digital account, upon receipt of documentation evidencing consent by the decedent, must comply with a request for information within 60 days, and a fiduciary may seek a court order for failure to comply.
- A court may grant a guardian access to the digital assets of a ward, and the guardian may request the suspension or termination of a digital account.
- Ohio’s statutory Power of Attorney form has been updated to include digital assets and electronic communications.
2. The two-car limit automobile allowance is eliminated, allowing a surviving spouse to select to transfer interest in more than two vehicles from the decedent’s estate, up to a maximum total value of $65,000 (increased from $40,000).
3. Guardianship land sales will become easier and more cost-effective, as guardians may sell real estate by filing written consent of all interested parties rather than requiring a separate legal case. Additional requirements for sale by consent are consistent with the sale of a decedent’s estate.
4. The Ohio Transfers to Minors Act has also been amended to ease the administrative burden. The transfer amount requiring court authorization has been increased from $10,000 to $25,000. Additionally, the donor and custodians may designate successor custodians, minimizing the need for court involvement. Also noteworthy is that the definition of “minor” has been amended in a manner that allows a custodian to hold property past the date the minor turns 21; a later age or date must be specified in the written instrument and cannot exceed the time the minor turns 25.
5. The Ohio Trust Code has been amended to expand virtual representation, authorizing the holder of certain limited powers of appointment to represent and bind possible appointees when no conflict of interest exists. Additionally, limited authorization is now given to an agent under a power of attorney to create a trust for an incapacitated principal.
6. House Bill 432 contains additional amendments or clarifications regarding the following: the uniform simultaneous death act, will deposit fees and the will deposit statute, passing of a testator’s property if a beneficiary prevents or neglects probate for one year, actions of the Franklin County Guardianship Service Board and removal of computerization fee increases.
7. Senate Bill 232 modifies transfer on death designations for real property. Consistent with other statutes in which spousal rights are forfeited in certain situations, when a spouse is the designated beneficiary but there has been a subsequent divorce, dissolution or annulment, the real property shall pass as though the now-former spouse predeceased the owner.
8. Also amended are statutes dealing with the inheritance and trust beneficiary rights of children born after the death of the decedent. Of note are new provisions governing the trust beneficiary rights of children born via assisted reproductive technology (ART). If a child is born via ART more than 300 days after the death of a trust settlor, the child will only be considered a child of the settlor, or will only be included in a beneficiary class, if the trust so provides in clear language. The trust can only extend the time period to a maximum of five years and must clearly state such a time period. If the trust provides for persons born via ART but does not provide a time period, the maximum time allowed will be one year and 300 days.
9. House Bill 451 addresses decisions on life-sustaining treatment, including the right of certain relatives and spouses to decide whether or not to withhold or withdraw life-sustaining treatment from a patient. Here, such right is forfeited if: a) the individual is a spouse of the patient and they are in the process of a divorce, dissolution, legal separation or annulment; b) the patient holds a civil protection order against the individual; or c) the patient is in such a state due to actions of the individual, for which he or she has been charged with a crime.