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Ohio Trust Code Update: Recent Developments, Alan Newman

Akron Law Faculty Publications

This article is based on the author’s presentations at the 20th Annual Estate Planning Conference on Wealth Transfer in Columbus on June 26, 2009.

Since its enactment in 2006, effective January 1, 2007, the Ohio Trust Code (“OTC”) has been amended, a number of cases have been decided under it, and a variety of issues related to or raised by it have been identified. This article will review those developments.

Copyright Acknowledgment: This material is reprinted from the Probate Law Journal of Ohio with permission of Thomson Reuters. Copyright permission is on file.

Shoemaker V. Gindlesberger: The Lack Of Privity Defense Survives, But Just Barely, Alan Newman

Akron Law Faculty Publications

In Shoemaker v. Gindlesberger, decided in May of this year, the Ohio Supreme Court held that: “A beneficiary of a decedent's will may not maintain a negligence action against an attorney for the preparation of a deed that results in increased tax liability for the estate.” In doing so, the Court approved and followed its 1987 decision in Simon v. Zipperstein. Under Zipperstein, an attorney who prepares a will for a client can not be liable in negligence to a third person the client intended to benefit under the will unless (i) the third person was in privity with the …

Revocable Trusts And The Law Of Wills: An Imperfect Fit, Alan Newman

Akron Law Faculty Publications

Over the centuries that wills have been used to dispose of testators’ property at death, the law of wills has developed to address issues that arose. Similarly, over the centuries that trusts have been used for non-testamentary purposes, the law of trusts has developed to resolve resulting issues.

In recent decades revocable trusts have become the most commonly used trust in the United States. To avoid estate administration, particularly in states in which administration involves cumbersome, time-consuming, and expensive court supervision, settlors make inter vivos transfers of assets that otherwise would be subject to administration on their deaths in trust. …

Ohio Trust Code: The Joint Committee's Proposal For Its First Amendment, Alan Newman

Akron Law Faculty Publications

This article discusses the changes included in the proposed amendment. Generally, the Joint Committee decided to include in the amendment straightforward changes as to which there was a broad consensus. The discussion below addresses the proposals included in the amendment in the order of the sections of the Revised Code that are affected.

Copyright Acknowledgment: This material is reprinted from the Probate Law Journal of Ohio with permission of Thomson Reuters. Copyright permission is on file.

Powers Of Withdrawal, Claims For Set-Off, And Spendthrift Protection, Alan Newman

Akron Law Faculty Publications

If a beneficiary of a spendthrift trust has a right to withdraw property from the trust, may the beneficiary’s creditors reach the assets subject to the withdrawal power? That was the principle question recently addressed by the 1st District Court of Appeals in Great American Insurance Company v. Thompson Trust. Also of interest: the case may have involved an offset by the trustee of amounts distributable to the beneficiary to repay amounts owed by the beneficiary to the trust.

Modification And Termination Of Irrevocable Trusts Under The Ohio Uniform Trust Code, Alan Newman, Jamie R. Minor

Akron Law Faculty Publications

The adoption of the Ohio Uniform Trust Code (the “OUTC” or “the Code”) will constitute a comprehensive codification of trust law in Ohio. Among the many subjects it covers are the modification and termination of trusts. As noted in a comment to the national Uniform Trust Code (the “UTC”), “the overall objective of these [modification and termination] sections is to enhance flexibility consistent with the principle that preserving the settlor’s intent is paramount.” Given such factors as the increased use of trusts in recent years (including trusts created by non-lawyers and lawyers who do not specialize in estate planning); the …

Spendthrift And Discretionary Trusts: Alive And Well Under The Uniform Trust Code, Alan Newman

Akron Law Faculty Publications

Spendthrift and Discretionary Trusts: Alive and Well under the Uniform Trust Code

Among the provisions of the Uniform Trust Code (“UTC” or the “Code”) that have attracted the most attention are those of Article 5: Creditor’s Claims; Spendthrift and Discretionary Trusts. Although much of the UTC is a codification of the common law of trusts, there are many differences among the states in their handling of various creditors’ rights issues, and many jurisdictions have no law on some of those issues. As a result, there is no well-accepted, established common law on some of the issues addressed by Article 5. …

Codify -- Not Modify: Creditor Remedies And The Ohio Uniform Trust Code, Alan Newman, Richard E. Davis

Akron Law Faculty Publications

In a number of states that have considered the Uniform Trust Code (“UTC”), Article 5, "Creditor’s Claims; Spendthrift And Discretionary Trusts," has become a flash point of controversy. The prefatory note to the UTC states that much of the UTC is a codification of the common law of trusts, but that it also introduces a number of innovative provisions. UTC critics, on the one hand, claim that more than a hundred years of common law have been tossed aside, giving creditors greatly expanded abilities to reach through once impenetrable barriers that previously protected trust beneficiaries, while supporters, on the other …

Ohio Uniform Trust Code Takes Shape, Alan Newman

Akron Law Faculty Publications

The Uniform Trust Code (UTC) has been under study in Ohio since shortly after its approval by the National Conference of Commissioners on Uniform State Laws in 2000. See, e.g., Susan S. Locke, et. al., Uniform Trust Code, 11 PLJO 49 (Mar./Apr. 2001); David M. English, The Uniform Trust Code (2000) and Its Application to Ohio, 12 PLJO 1 (Sept./Oct. 2001); and David M. English, The Uniform Trust Code (2000) and its Application to Ohio, 30 Capital University Law Review 1 (2000).

Substantial progress has been made towards the adoption of a modified version of the UTC in Ohio. At …

The Rights Of Creditors Of Beneficiaries Under The Uniform Trust Code: An Examination Of The Compromise, Alan Newman

Akron Law Faculty Publications

The Rights of Creditors of Beneficiaries under the Uniform Trust Code: An Examination of the Compromise

The new Uniform Trust Code (the “UTC”), which recently has been introduced in the District of Columbia and six states but has not yet been enacted in any jurisdiction, is described in its prefatory note as “the first comprehensive national codification of the law of trusts.” According to its Reporter:

Crafting the provisions of Article 5 on spendthrift protection and the rights of a beneficiary’s creditors to reach the trust proved to be the most difficult task in drafting the Act. The area is …

Incorporating The Partnership Theory Of Marriage Into Elective-Share Law: The Approximation System Of The Uniform Probate Code And The Deferred-Community-Property Alternative, Alan Newman

Akron Law Faculty Publications

Incorporating the Partnership Theory of Marriage into Elective-Share Law: The Approximation System of the Uniform Probate Code and the Deferred-Community-Property Alternative

With respect to marital property rights, the contemporary view of marriage is that it is an economic partnership. Spouses are viewed as equal partners with respect to property acquired during the marriage from either of their efforts, but as having no claim to property the other spouse brought to the marriage, or received by gift or inheritance during the marriage. The widespread acceptance of this theory, which has long been an underlying principle of the community-property system, is evidenced …

Acting As Agent Under A Financial Durable Power Of Attorney: An Unscripted Role, Carolyn L. Dessin

Akron Law Faculty Publications

The financial durable power of attorney, also known as a durable power of attorney for property management, is a creature of fairly recent origin. The estate planning bar created it to provide an effective alternative to guardianship or conservatorship proceedings when people become incompetent or incapacitated. Additionally, there was a sentiment that the wealthy had an effective way of dealing with potential disability by creating a funded inter vivos trust, and that such a device was not available to most individuals because of the prohibitive cost. Since its creation, the financial durable power of attorney has become an extremely popular …

The Troubled Relationship Of Will Contracts And Spousal Protection: Time For An Amicable Separation, Carolyn L. Dessin

Akron Law Faculty Publications

We live in a society with rapidly changing familial norms. Statistics show that one out of every two marriages ends in divorce, and even higher divorce rates are projected. The number of people who remarry following a divorce also is increasing.

Much has been written about the effect of the changing family patterns on estate planning. In the era when having only one spouse and one set of children was the norm, it was fairly simple to develop a rational system for dividing the person's estate among spouse and children. In recent decades, however, the growing number of multiple marriages …