The Uniform Trust Code: An Analysis of Ohio's Version

Abstract

The Uniform Trust Code (UTC), which was promulgated in 2000, is the first national codification of the law of trusts. It has been adopted, with modifications, in 19 jurisdictions and is under consideration for adoption in many others. The Ohio Trust Code (OTC), which includes many significant modifications from the UTC, was enacted in June 2006, with an effective date of January 1, 2007.

The OTC is the product of extensive study of the UTC by a joint committee of members of the Estate Planning, Trust, and Probate Law Section of the Ohio State Bar Association and members of the Legal, Legislative, and Regulatory Committee of the Ohio Bankers League. Members of the Ohio Probate Judges Association also participated in the process. Input also was received by the Family Law Section of the Ohio State Bar Association, the Ohio Attorney General's office, and many lawyers and bankers across the state. It is a comprehensive codification of trust law in Ohio.

This Article examines the OTC, changes it has made to existing Ohio law, changes made to it from the UTC, policy considerations with respect to its enactment, and various issues it raises, and makes recommendations for changes to it by amendment. Considerable attention is directed to its creditors' rights provisions. The UTC's provisions on that subject have been among its most controversial (and played a significant role in its defeat in Colorado and Oklahoma, and in its repeal in Arizona). The OTC's creditors' rights provisions depart significantly from the UTC's and include innovations (for example, a statutory "wholly discretionary trust" and provisions designed to address issues peculiar to special needs trusts for incapacitated persons who are receiving, or anticipate receiving, public assistance) that have received considerable attention. Among the other provisions of the OTC that depart in significant ways from the UTC that the Article addresses are those on the trustee's duty to keep beneficiaries informed about the trust and the settlor's right to modify that duty; the ability of persons interested in a trust to enter into "private settlement agreements;" and the modification and termination of trusts.

Keywords: trusts, uniform trust code