Ohio Probate Law Journal Article

IN THIS ISSUE:
Publisher’s Message 179
Editor’s Message 179
Digital Assets and Fiduciaries, Help
is on the Way! 179
By Mark A. Watson, Esq
Spiders from Mars: UPOAA, UFADAA
& Ziggy Stardust 182
By Richard E. Davis, Esq.
Matthew R. Hochstetler, Esq.
Wills and Trusts: Updating Ohio’s
Pre-Mortem Validation Law 191
By Ralph Lehman, Esq.
Ohio’s Anti-Lapse Statute and the
Proposed Statutory Response to
Castillo v. Ott 197
By Brian Layman, Esq.
Superintendence Rule 66 and its
Impact on Your Guardianship
Practice 199
By Colleen B. Laux, Esq.
Conicts of Interest in Estate
Administration 205
By J. Michael Cooney, Esq.
Summary of Gehrke v. Senkiw,
2016-Ohio-2657 207
By Richard Kolb, Esq.
Unbundling of Trustee Fees and
Other Expenses Under Treas. Reg.
1.67-4 209
By Kevin G. Robertson, Esq.
Valuation: Beyond the Basics 212
By William R. Graf, Esq.
Structuring Trust Arrangements to
Hold Family Business Interests 219
By James G. Dickinson, Esq.
Passing the Baton to the Next
Generation: Law Practice Succession
Planning 226
By William J. McGraw, III, Esq.
Sarah G. Worley, Esq.
Case Summaries 230
Subject Index 232
Legislative Scorecard 235
PUBLISHER’S MESSAGE
The Probate Law Journal of Ohio is available on WestlawNext,
starting with Volume 11 (September/October 2000). The database is
searchable by author name, article title, date, text, source, and
citation. For subscription inquiries please call 1-800-328-9352.
EDITOR’S MESSAGE
The OSBA Council of Delegates has approved four more legisla-
tive recommendations from the EPTPL Section. Those proposals
relate to digital assets, predeath probate of wills and trusts and
clariŽcation of the antilapse statutes. They are listed in the Legisla-
tive Scorecard of this issue of PLJO. It is probably too late to add
them to the pending omnibus bill (HB 432), but they may form the
core of a new omnibus bill in the new General Assembly next spring,
making them eective perhaps two years from now.
DIGITAL ASSETS AND FIDUCIARIES, HELP IS
ON THE WAY!
By Mark A. Watson, Esq*
Stubbins, Watson & Bryan Co., LPA
Zanesville, Ohio
Chairman EPTPL Section Committee on Access to Digital Assets
“Digital Assets.” Just a few years ago that phrase was rarely
mentioned by lawyers and their clients. Yet as technology has
evolved, the average person on the street has acquired one or more
email accounts, a computer, “smart phone,” and possibly a tablet
device. The average person on the street deposits checks in a bank
account by using a phone app and hasn’t visited the local bank
branch in weeks. The average person on the street makes purchases
*The author would like to thank Roy A. Krall, Esq., Chairman of the EPTPL
Section Council, for his assistance with the preparation of the Report
to the Council of Delegates.
MAY/JUNE 2016 VOLUME 26 ISSUE 5
PROBATE
LAW
JOURNAL OF OHIO
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online with a user name and password and even
manages his or her investment portfolio in “the
cloud.” Today, the average person on the street has
“Digital Assets” and wants to be able to control
those assets just like traditional assets.
Over the past few years articles have been pre-
sented in this Journal articulating the need to ad-
dress digital asset issues for clients and their
Žduciaries.1
On April 8, 2016 the Screening Com-
mittee of the OSBA Council of Delegates heard the
report of the Estate Planning, Trust and Probate
Law (EPTPL) Section recommending adoption of
the 2015 Revised Uniform Fiduciary Access to
Digital Assets Act drafted by the National Confer-
ence of Commissioners on Uniform State Laws
(NCCUSL). A question was raised at the Screening
Committee meeting. Since Revised UFADAA could
overlap into Intellectual Property law, should
OSBA act on the Revised UFADAA proposal or wait
until the OSBA Intellectual Property Section had a
chance to review the proposal? Two responsive com-
ments were made: 1) Intellectual Property lawyers
were involved in the creation of Revised UFADAA
and 2) Revised UFADAA requires uniformity from
state to state thereby limiting the ability to make
substantive changes at the state level. The Screen-
ing Committee approved the EPTPL recommenda-
tion and the proposal advanced to the full Council
of Delegates. The EPTPL report to the Council of
Delegates is set forth below.
SUMMARY AND RATIONALE FOR
PROPOSAL.
Use of the internet has dramatically changed
how people communicate, store documents and
transact business. Many have access to the Internet
and use internet service providers and software to
deal with such things as banking, investing, email-
ing, document storage and purchasing. State and
federal laws restrict access to these “digital assets”
by Žduciaries and state laws dier greatly. Some
states have enacted laws that touch on some of the
issues Žduciaries face when dealing with digital as-
sets and electronic communications but many
states, including Ohio, have no statutory authority.
Moreover, the terms-of-service agreements of
internet service providers generally govern how
these digital assets are dealt with. The inability to
access these digital assets by executors or adminis-
trators, trustees, guardians, and agents acting
under a power of attorney can be frustrating to
devastating.
The EPTPL Section of OSBA formed a commit-
tee to study issues relating to Žduciary access to
digital assets several years ago. The committee
soon realized that the nature of these assets
requires a uniform approach across the entire
country and concluded that Ohioans would be best
served if action was postponed until a uniform law
was available for review.
In late 2015, the Revised Uniform Access to
Digital Assets Act (Revised UFADAA) was ap-
proved and recommended for enactment in all
states by NCCUSL. The EPTPL committee made
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local terminology changes for Ohio but did not
change the act substantively in order to safeguard
pre-existing approval by various internet service
providers, including Google and Facebook. Both of
these companies have expressed written approval
of and adherence to statutes not materially dier-
ent from Revised UFADAA. Facebook indicated
speciŽcally that uniformity among states was quite
important to it.
Revised UFADAA modiŽes the original Uniform
Access to Digital Assets Act (2014) which was im-
mediately opposed by privacy advocates and many
internet service providers and technology
companies. In fact, a competing Act was proposed
by technology companies called the Privacy Expec-
tations Afterlife and Choices Act (PEAC ACT).
PEAC failed to deal with many of the problems
Žduciaries have in dealing with digital assets and
electronic communications. In order to resolve these
dierences and draft suitable legislation, NCCUSL
included many opponents of UFADAA in the
discussions to arrive at Revised UFADAA. It is
believed that Revised UFADAA alleviates most of
the concerns of the opponents to UFADAA while
still giving Žduciaries appropriate access to digital
assets.
Revised UFADAA deals with four common types
of Žduciaries:
1) Executors or Administrators of deceased
persons’ estates;
2) Court appointed Guardians or Conservators
of Wards;
3) Agents under a power of attorney;
4) Trustees.
Under the Act, Internet users have several
options: If the custodian (the company that stores
the user’s digital assets on their servers) provides
for an online tool, the user may use the online tool
to designate who may access the user’s digital
assets. If a custodian does not provide an online
tool option or if the user declines to use an online
tool, the user may give enforceable directions for
access to their digital assets in traditional estate
planning documents such as a will, trust or power
of attorney. If there are no directions given by a
user with an online tool or in the user’s estate plan-
ning documents, the terms-of-service agreements of
the user’s accounts will determine Žduciary access;
and if the terms-of-service agreements are silent
regarding Žduciary access, the default rules of
Revised UFADAA will apply.
The Act has several purposes:
(1) It gives Ohio Internet users the ability to
plan for the management of their digital as-
sets and electronic communications by
Žduciaries.
(2) It creates a system to deal with conicting
instructions regarding access to these digital
assets.
(3) It provides Žduciaries the legal authority to
access and manage electronic communica-
tions and digital assets while still respecting
an owner’s reasonable expectations to
privacy.
(4) It gives internet service providers (custodians
under the Act) legal authority to deal with
Žduciaries of their customers.
On April 27, 2016 the OSBA Council of Delegates
unanimously approved the proposal of the EPTPL
Section recommending adoption of the NCCUSL
2015 Revised Uniform Fiduciary Access to Digital
Assets Act. Twenty-nine states have either intro-
duced or passed Revised UFADAA as of the end of
April, 2016. Ohio will be the 30th state to introduce
the act and the process of securing a sponsor in the
General Assembly is under way. Ohioans and their
Žduciaries should soon have the ability to manage
and control digital assets with statutory authority.
ENDNOTES:
1See, e.g., Lenz, Death and Downloads: The
Evolving Law of Fiduciary Access to Digital Assets
23 No. 1 Ohio Prob. L.J. NL 2, Sept/Oct. 2012;
Dunn, Estate Planning and Administration in the
Digital Age, 25 No. 1 Ohio Prob. L.J. NL 2, Sept./
Oct. 2014; Watson, Proposal; Authorizing Access to
Digital Assets by Fiduciaries, 25 No. 4 Ohio Prob.
L.J. NL 4, Mar./Apr. 2015; Lenz, Fiduciaries and
Digital Assets: Is the Cloud Finally Lifting?, 26 No.
3 Ohio Prob. L.J. NL 3 Jan./Feb. 2016.
PROBATE LAW JOURNAL OF OHIO MAY/JUNE 2016 | VOLUME 26 | ISSUE 5
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SPIDERS FROM MARS: UPOAA,
UFADAA & ZIGGY STARDUST
By Richard E. Davis, Esq.
Krugliak, Wilkins, Griths & Dougherty Co., L.P.A.
Canton, Ohio
Member, PLJO Editorial Advisory Board
and
Matthew R. Hochstetler, Esq.
Day Ketterer Ltd.
Canton, Ohio
One can hardly study the subject of the Uniform
Power of Attorney Act (“UPOAA”) and the Uniform
Fiduciary Access to Digital Assets Act (“UFADAA”)
without becoming aware of the uncanny coinci-
dences involving those acts and the lives of the
amboyant David Bowie and the ultra-square Al
Gore. Consider these “stranger than Žction”
parallels:
E Within roughly a 12-month period in 1947 and
1948, both David Robert Jones (later known
as David Bowie) and Albert Arnold “Al” Gore,
Jr. were born.
E In the 1970s, Bowie morphed into Ziggy Star-
dust, becoming arguably the greatest rock star
of the decade, while simultaneously Congress-
man Gore was the lone voice in Congress
promoting the “fascination1
” of high-speed
telecommunications as an engine for economic
growth.
E The National Conference of Commissioners on
Uniform State Laws (nka the Uniform Law
Commission) Žnalizes the Uniform Durable
Power of Attorney Act in 1979, as David Bowie
completes his Berlin Trilogy and Al Gore
serves his second term in the House of
Representatives.
E In 1986, Congress enacts the Electronic Com-
munications Privacy Act2
(the “ECPA”) and
the Computer Fraud and Abuse Act3
(the
“CFAA”); Bowie stars in Jim Henson’s cult
classic Labyrinth as Jareth, the Goblin King;
and Gore introduces the Supercomputer Net-
work Study Act of 1986.
E The World Wide Web is invented in 1989, just
as Bowie and his new band Tin Machine
release their self-titled debut album, a copy of
which was undoubtedly purchased by Tipper
Gore so that her Parents Music Resource
Center could review its lyrics.
E In another 12-month span in 1991-1992, the
computer service Prodigy allows subscribers
to send 30 free emails per month, Gore drafts
the High Performance Computing Act of 1991
(commonly referred to as “The Gore Bill”)4
,
and Bowie asks supermodel Iman to “be my
wife5
.”
E As a result of Gore’s 1993 call for the creation
of a “nationwide information superhighway,”
Mosaic (later Netscape) is released, sparking
the Internet boom of the 1990s, increasing the
“speed of life6
” for all of us.
E In 1996 and 1997, while Gore is serving in
two important positions—Vice President of the
United States and President of the Senate—
Bowie receives two important awards: he is
inducted into the Rock and Roll Hall of
“Fame,7
” and he receives a star on the Hol-
lywood Walk of Fame.
E Responding to Gore’s call, in 1998, Bowie
launches BowieNet8
, the Žrst artist-created
Internet service provider, and the next year
he releases the Žrst album by a major artist
available for download prior to its physical
release. A press release from the U.K. said it
was “logical” that Bowie would be on the cut-
ting edge of digital development.
E In 2006, UPOAA is put in Žnal form by the
Uniform Law Commission, Bowie is honored
with the Grammy Lifetime Achievement
Award and appears in Christopher Nolan’s
thriller The Prestige, and Gore’s Academy
Award winning Žlm An Inconvenient Truth is
released.
E In 2007, Steve Jobs introduces Apple’s “savior
machine9
,” the iPhone, launching the mobile
revolution; Al Gore is awarded the Nobel
Peace Prize; and Bowie takes some well-
deserved time o.
E Realizing that “love is lost10
,” Al and Tipper
Gore split in 2010.

E “Where are we now11
?” In 2016, Gore decided
not to run for President again, and a mere 12
days after Bowie’s death, Apple refused to give
a widow her dead husband’s Apple ID without
a court order so she could continue to play a
bridge game they had purchased using their
joint iTunes account.12
As fun and interesting (or not) as these facts
might be, they have been listed primarily to make
some important points. First, as will be discussed
more thoroughly below, the two federal acts that
have been causing most of the trouble regarding Ž-
duciary access to digital assets were enacted in
1986, several years before the invention of the
World Wide Web and social media, and well before
virtually anyone actually owned any digital assets.
Second, as recent as UPOAA is, that Act was Žnal-
ized the year before the launch of the iPhone and
the subsequent boom in the growth of social media.
Third, David Bowie was a visionary, both musically
and digitally, who will be missed. Fourth, while Al
Gore can claim only partial credit for creating the
Internet13
, he was another of “the dreamers14
,” be-
ing one of the Žrst to realize the possibilities of
computers in the information age, and he crafted
at least two of the earliest bills to help foster its
growth. Let’s “move on15
.”
“Tomorrow belongs to those who can hear it coming.”
—David Bowie
Tomorrow is coming, and Ohio estate planners
hear it. Digital assets are all around us, and they
are becoming increasingly important to our clients
and their beneŽciaries.
Planning for Žduciaries to access those assets is
becoming increasingly important as well. If Ohio
enacts the UFADAA, part of that enactment is
expected to be an OSBA Estate Planning, Trust
and Probate Law (“EPTPL”) Council proposal to
modify Ohio’s statutory power of attorney form to
make it possible to grant digital asset powers and
to permit agents to access electronic communica-
tions of their principals. This article will discuss
the background problems that agents currently
have in dealing with digital assets, the proposed
statutory changes, and best practices for counsel-
ling clients in dealing with digital asset issues with
powers of attorney.
UPOAA Adequately Deals with Digital Assets, Doesn’t
It?
“If it works, it’s out of date.” —David Bowie
It’s the same old problem all over again. Life
comes at us and our clients in the form of the “re-
ally real,” but the “law16
” exists only as an abstrac-
tion and despite all best attempts, no abstraction
can ever adequately deal with all real-life
situations. As Yogi Berra once said, “It’s like déjá
vu all over again.” The UPOAA seems, and was
intended, to grant to agents all authority necessary
to deal with digital assets of their principals.
UPOAA’s ocial comment to its Section 203 [R.C.
1337.44] states:
Paragraphs (8) and (9) [i.e. R.C. 1337.44 {K} and {L}]
were added to the section to clarify that this compre-
hensive authority includes authorization to com-
municate with government employees on behalf of
the principal, to access communications intended for
the principal, and to communicate on behalf of the
principal using all modern means of communication.
[Emphasis added.]
UPOAA came into existence well into the digital
age, but before the advent of the mobile revolution,
and it was drafted taking into account the need of
agents to be able to access digital records of their
principals. In fact, the so-called “referred” or
“implied” powers of R.C. § 1337.44 expressly grant
to agents the power to “access communications
intended for, and communicate on behalf of, the
principal, whether by mail, electronic transmission,
telephone, or other means” with respect to each
statutory power granted by the principal. More-
over, UPOAA and UFADAA share the same deŽni-
tions for “electronic” and “record,” so nothing more
should be needed. “Would that it were so simple.17
”
While UPOAA arguably grants agents the au-
thority necessary to access digital records, an agent
attempting to access certain electronic communica-
tions of the principal can expect signiŽcant
obstacles. Moreover, the term “digital assets,”
which is not deŽned by UPOAA, encompasses far
more than electronic records.
“Digital assets” include electronically stored infor-
mation, Internet domain names, virtual currencies
like Bitcoin, and online accounts such as email ac-
counts, social networking accounts, banking and
investment accounts, shopping accounts, Web pages,

blogs, photo-sharing accounts, video-sharing ac-
counts, video game accounts, Žle storage accounts,
and more.18
Despite the clear intent of UPOAA, if Ohio enacts
UFADAA, changes will also be made to the Ohio
version of UPOAA to take full advantage of the
digital access aorded by UFADAA. This is not
because of any deŽciency with UPOAA itself, but
because of what is almost certainly an unintended
interpretation of two federal laws passed in 1986.
Federal Law Complications
“Turn and Face the Strange” —David Bowie
Many technology companies take the position
that they cannot release information regarding
their customer’s accounts to Žduciaries because of
two federal laws—the Electronic Communications
Privacy Act19
(the “ECPA”) and the Computer
Fraud and Abuse Act20
(the “CFAA”). ECPA was a
1986 amendment to the Omnibus Crime Control
and Safe Streets Act of 1968 (sometimes referred to
as the Wiretap Act), and its primary purpose was
to extend government restrictions on wiretaps from
telephone calls to include electronic data by
computer. CFAA, which was also passed in 1986, is
aimed primarily at criminalizing the hacking of
computers of the federal governmental and Žnancial
institutions.21
It is clear that neither act sought to
limit Žduciary access to digital assets, but because
it has been held that any device capable of being
connected to the Internet is a protected computer
under CFAA,22
it is “little wonder23
” that the posi-
tion of many tech companies has become
intransigent. Fortunately, this problem is less com-
mon “outside24
” Silicon Valley.
Much has been written about problems raised by
the ECPA and the CFAA with regard to Žduciary
access to electronic communications.25
The former
prohibits providers of electronic communications
services from disclosing the contents of electronic
communications,26
unless one of eight exceptions
applies, and under the latter, the government may
charge a person with a crime when that person
exceeds authorized access to a digital account.27
The two ECPA exceptions applicable to agents
under powers of attorney are:
(1) to an addressee or intended recipient of such com-
munication or an agent of such addressee or intended
recipient;
* * *
(3) with the lawful consent of the originator or an
addressee or intended recipient of such communica-
tion, or the subscriber in the case of remote comput-
ing service.
In the context of powers of attorney, under both
ECPA and CFAA, an agent needs “authorization”
to access the principal’s account, and under ECPA’s
third (but not the Žrst) exception, the provider may
only disclose the contents of the communication
with the “lawful consent” of the principal (assum-
ing that the principal was the originator or the
intended recipient); otherwise, the custodian can
only release information about the principal’s
account. Neither “authorization” nor “lawful con-
sent” is deŽned.28
An agent who, with the principal’s consent, uses
the principal’s password to access the principal’s
account may commit a crime under CFAA if the
Terms of Service (“TOS”) agreement of the service
provider prohibits the sharing passwords or other-
wise prohibits anyone other than the owner from
accessing the account.
The U.S. Department of Justice asserts that
§ 1030(a)(2) of the Computer Fraud and Abuse Act is
broad enough to permit the government to charge a
person with a crime for violating the CFAA when
that person “exceeds authorized access” by violating
the access rules of a Website’s Terms of Service
contract or use policies. This position was stated by
Richard Downing, Deputy Chief of the DOJ’s Com-
puter Crime and Intellectual Property Section, Crim-
inal Division, in testimony presented on November
15, 2011, before the U.S. House Committee on Judi-
ciary, Subcommittee on Crime, Terrorism, and
National Security. However, Mr. Downing also testi-
Žed, “Let me be very clear that the DOJ is in no way
interested in bringing cases against the people who
lie about their age on a dating site or anything of the
sort. We don’t have time or resources to do that.”29
Applying a 1986 cybercrime bill to an agent with
digital-asset powers for accessing the Facebook or
Gmail account of the principal in violation of the
TOS makes as much sense as interpreting the
Second Amendment—drafted at a time when the
only guns available were front-end muzzle load-
ers—as protecting the right to own privately and to

carry openly automatic assault ries capable of
shooting 600 rounds a minute. Yet that is where
we are, in both cases, making us feel “unwashed
and somewhat slightly dazed30
.” “Speak in extremes,
it’ll save you time.” —David Bowie
Here’s “what’s really happening31
.” A reasonable
interpretation of ECPA, as well as its legislative
history,32
both allow Žduciaries to be able to step
into the shoes of the account holder whose interests
the Žduciary represents; however, many tech
companies assert that the prospect of Žnes under
ECPA and the threat of criminal sanctions under
CFAA make them “tumble and twirl33
” forcing them
to interpret those acts in the most restrictive way
possible to protect themselves from potential
liability.
In this regard, agents under powers of attorney
appear to be in a better position than any other Ž-
duciary, because the ECPA permits the custodian
of electronic communications to divulge the con-
tents to the intended recipient of the communica-
tion or to the intended recipient’s agent. Three
things should be noted. First, this merely permits
the custodian to reveal the contents of the com-
munication; the custodian cannot be compelled by
anyone to release the communication. Secondly,
the contents can only be released to the agent of
the recipient, not to the agent of a sender. While it
might be criminal for an agent to access the ac-
count because, for example, the TOS limits access
solely to the account owner, the service provider is
permitted to give the agent the contents of com-
munication sent to (but not sent by) the account
owner. In other words, an agent attempting to ac-
cess the email account of his or her principal would
only be permitted to access the inbox, but not the
“sent” folder! Third, ECPA exceptions (1) and (3)
signiŽcantly overlap; however (3) requires “lawful
consent” while (1) does not.
UPOAA is Getting an Upgrade
“Ch-ch-ch-ch-Changes.” —David Bowie
To overcome the purported challenges posed by
federal law and to fully avail an agent of the pow-
ers granted by UFADAA, the EPTPL Council has
proposed two revisions to UPOAA.
The Žrst proposed revision to UPOAA deŽnes an
agent’s digital-asset powers by adding a new sec-
tion to Revised Code Chapter 1337. UFADAA lists
those things that a power of attorney can authorize
an agent to do, but it remains necessary for the
power of attorney document to actually grant those
powers. Accordingly, the EPTPL Council chose to
assemble the Žve things that UFADAA permits an
agent to do into one digital asset power. DeŽning
an agent’s digital-asset powers in this way will
make it easy for principals to authorize their agents
to do everything agents are permitted to do under
UFADAA. The proposed new section reads as
follows:
Unless the power of attorney otherwise provides,
language in a power of attorney granting general
authority with respect to digital assets causes the
agent to be an authorized user for the purpose of ap-
plicable computer fraud and unauthorized computer
access laws and authorizes the agent to do all of the
following:
(A) have access to any catalog of electronic com-
munications sent or received by the principal;
(B) have access to any other digital asset in which
the principal has a right or interest;
(C) have the right to access any of the principal’s
tangible personal property capable of receiving,
storing, processing, or sending a digital asset;
(D) take any action concerning the asset to the
extent of the account holder’s authority;
(E) have access to the content of electronic com-
munications sent or received by the principal.
The new section will mesh well with UPOAA’s
existing provisions. Revised Code § 1337.44 allows
a principal to grant many powers to an agent with
respect to various subject matters by referencing
one or more subjects listed in Revised Code
§§ 1337.45-58. Consolidating digital-asset powers
into one subject-matter section means a principal
will be able to grant all of these powers by refer-
ence to the digital asset powers without having to
list the Žve digital asset powers individually in the
power of attorney.34
The second revision to the statutory power-of-
attorney form in Revised Code § 1337.60 is the ad-
dition of two new lines which the principal can
initial. The Žrst of these is to grant the statutory
digital assets powers referred to in the preceding
paragraph. By initialing the second new line, the
principal indicates consent to the release of the
content of electronic communications to the agent.
As discussed above, exception (3) to the ECPA’s

prohibition of release of the content of electronic
communications allows the release with the “lawful
consent” of the originator or recipient. It was the
Council’s belief that lawful consent, whatever that
might mean, likely cannot be granted by means of
a statutory deŽnition of digital asset powers, but
instead probably requires the actual consent of the
principal. The proposed UPOAA statutory deŽni-
tion of digital-asset powers includes authorization
for the agent to access the content of electronic com-
munications, but it is not clear whether referring
to the statute will be sucient to shelter the agent
and the digital account custodian from liability.
Including an express grant of authority in the
power of attorney should satisfy the lawful consent
requirement, thereby allowing the custodian to
release the content of the communication to the
agent without facing the prospect of signiŽcant li-
ability under CFAA.
What Can My Clients and I Do Until UFADAA Passes?
“I can see light at the end of the tunnel and it isn’t a
train.” —David Bowie
“I’ve come to the realizations that I have absolutely no
idea what I’m doing half the time.” —David Bowie
Grant the Digital-Asset Powers Now. Clients will
not need to execute new powers of attorney follow-
ing enactment of UFADAA if they include the
proposed statutory power in their power of attorney
documents now. If the statutory form is used, the
grant of this power should be set forth under the
section entitled “Special Instructions.” The sug-
gested form is:
My agent shall have the authority with respect to
digital assets to exercise all powers that an absolute
owner would have and any other powers appropriate
to achieve the proper investment, management, and
distribution of any kind of computing device of mine,
any kind of data storage device or medium of mine,
any electronically stored information of mine, any
user account of mine; and any domain name of mine.
SpeciŽcally, my agent shall (1) have access to any
catalog of electronic communications sent or received
by me, (2) have access to any other digital asset in
which I have a right or interest, (3) have the right to
access any of my tangible personal property used to
store any of my digital assets, (4) have the power to
take any action concerning the asset to the extent of
my authority, and (5) have access to the content of
electronic communications sent or received by me.
This authorization is to be construed to be my lawful
consent under the Electronic Communications
Privacy Act of 1986, as amended; the Computer
Fraud and Abuse Act of 1986, as amended; and any
other applicable federal or state data privacy law or
criminal law.
Second, the principal should authorize third par-
ties with whom the principal maintains accounts to
release information to the agent. UFADAA will
provide for that authorization, but until its enact-
ment, the better practice might be to have clients
sign separately a broad authorization, as set forth
below, simply because some tech companies seem
incapable of understanding the concept that P
authorizing A to access P’s electronic communica-
tions necessarily includes P’s consent to the disclo-
sure of those communications to A. Many providers
will accept the agent’s authority to deal with digital
assets if a grant of that power is set forth in the
power of attorney. For those who will not, a copy of
the authorization could be provided. A suggested
form (which addresses the release of information to
the agent and other Žduciaries) is:
I hereby authorize any person or entity that pos-
sesses, custodies, or controls any electronically stored
information of mine or that provides to me an
electronic communication service or remote comput-
ing service, whether public or private, to divulge to
my then-acting Žduciaries at any time: (1) any
electronically stored information of mine; (2) the
contents of any communication that is in electronic
storage by that service or that is carried or main-
tained on that service; and (3) any record or other
information pertaining to me with respect to that
service. The terms used in this authorization are to
be construed as broadly as possible, and the term
“Žduciaries” includes an agent acting under a power
of attorney signed by me, a guardian appointed for
me, a trustee of my revocable trust, and the executor
of my estate. This authorization is to be construed to
be my lawful consent under the Electronic Com-
munications Privacy Act, the Stored Communica-
tions Act, the Computer Fraud and Abuse Act, and
any other applicable federal or state data privacy
law or criminal law. This authorization is eective
immediately. Unless this authorization is revoked by
me in writing while I am competent, this authoriza-
tion continues to be eective during any period that
I am incapacitated and continues to be eective after
my death. Unless a person or entity has received
actual notice that this authorization has been validly
revoked by me, that person or entity receiving this
authorization may act in reliance on the presump-

tion that it is valid and unrevoked, and that person
or entity is released and held harmless by me, my
heirs, legal representatives, successors, and assigns
from any loss suered or liability incurred for acting
according to this authorization. A person or entity
may accept a copy or facsimile of this original autho-
rization as though it were an original document.35
Educate the Client. Many clients do not recognize
the value of their digital assets. Assets with little
perceived worth (such as a 10-year-old Toyota
Corolla their son drives, a seldom-used bank ac-
count that contains only a couple of thousand dol-
lars, or a “small plot of land36
”) are often not
volunteered by clients in a discussion of their
assets.
Because most clients are looking for a “miracle
goodnight37
” rather than a host of post-incapacity
or death problems, a short discussion about how a
low-value asset can trigger the need for probate
estate administration often opens their eyes from
their “moonage daydream38
” making them realize
the importance of properly planning for all of their
assets—not just the ones they perceive to be the
most valuable.
Saying, “I keep forgettin’39
” a typical client will
often fail to mention digital assets the value of
which is primarily sentimental, assuming that we,
as planners, are only concerned with assets having
Žnancial value. Clients need to provide for access
to their terabytes of pictures on Flickr or their
thoughts and impressions of daily life in their
Gmail and Facebook (but probably not Ashley Mad-
ison) accounts, upon their disability or death.
Discuss with clients what data they would regret
losing if their computer, mobile phone, or other de-
vice were to be lost or destroyed, and what infor-
mation on those devices might be critically impor-
tant to their agents in the event of their incapacity.
Undoubtedly, “some are40
” already thinking about
this.
Clients Must Inventory Their Digital Assets.
Clients should be asked to make a list of all of their
electronic devices, email addresses, personal
websites, social media sites, cloud-storage services,
media-sharing sites, banking and brokerage ac-
counts, and the usernames, passwords, and secu-
rity questions and answers for each. A good tem-
plate is Minneapolis Attorney Jim Lamm’s Digital
Audit form.41
Because such a list contains so much
sensitive information, it should be kept in a secure
location able, and the agent to whom the digital as-
set powers are granted should be aware of the exis-
tence and location of the list.
Tech-savvy clients should be encouraged to use
password-management software (e.g., LastPass or
Dashlane), which stores usernames and passwords
in a digital “vault” that is unlocked by us-ing a
master password. The vault can be often synchro-
nized across devices and operating systems to make
accessing passwords convenient as well as secure.
Some pass-word-management software has the op-
tion to allow the software to “autoŽll” usernames
and passwords, which is faster than reviewing a
printed list and less tedious than typing the (ide-
ally) secure password into the website.
Even though the password vault is secure, the
master password along with instructions on how to
access the password vault should be locked away.
As with a physical listing of the principal’s digital
inventory, the agent to whom the digital asset pow-
ers are given must be able to access the password
vault, if and when it becomes necessary for the
agent to act.
Clients Must Use Strong, Unique Passwords and
Update Them Regularly. Once your clients’ user-
names and passwords have been cataloged, it is
important that they are kept updated. While many
corporate IT procedures require passwords to be
changed at regular intervals, few Websites have
such a requirement. Still, changing passwords to
Websites periodically is wise because it reduces the
risk that a password will be compromised. Two
password managers, LastPass and Dashlane, make
this process easy by updating your passwords on
many popular Websites with a few clicks.42
Other
similar programs are available, and we should tell
our clients to “try some, buy some43
.” Cliord Stoll,
who is known for his pioneering work in computer
counter-espionage, oers a good rule of thumb:
“Treat your password like your toothbrush. Don’t
let anybody else use it, and get a new one every six
months.”
Strong passwords are critical. Generally, a strong

password should be eight characters long or longer,
not contain any words or names, include at least
one capital letter, one lower-case letter, one num-
ber, and one special character (such as an asterisk
or ampersand), and be is signiŽcantly dierent from
prior passwords for that site.44
Using password-
management software that has an autoŽll feature
eliminates the downside of long, complicated
passwords. Many password managers will also
generate strong passwords for you, which makes
long, strong passwords easier than shorter, less-
secure ones that you create yourself.
Using unique passwords on each Website reduces
the risk that a compromised password will have
catastrophic results. In 2010, the New York Times
reported that hackers stole 32 million passwords
from an online gaming company, and that of those
stolen, 20% (about 6,400,000) shared 5,000 com-
mon passwords.45
For a user who also utilizes one
common password on multiple sites, the cost of that
data breach would be much higher than for a user
committed to using a unique password for each
account.
Clients whose passwords are secured using a
password manager should be periodically reminded
to update the master password. A hard copy should
be kept in a secure place like a safe, to which the
agent has access.
Clients Should Use Multi-Factor Authentication.
Accounts that require multi-factor authentication
(“MFA”—sometimes called two-factor authentica-
tion) need more than just a password to obtain
access. A password is one factor, and the second
factor is often a one-time-use code. The code might
be sent by email or text (to a pre-approved phone
number), or it might be generated by a computer or
smartphone app (e.g., Authy or Google
Authenticator). Even if a client’s password is stolen
or breached, an account protected by MFA may still
be secure.
Clients with MFA accounts must be sure their
agents have access to their computers, phones, and
other devices or the agents may be shut out of
certain accounts despite having the password.
Attorneys Should Not Keep Clients’ Passwords.
Attorneys should generally not oer to keep a copy
of a client’s passwords. An attorney’s Žles may seem
like an ideal place to keep passwords, but if a
password is compromised, the attorney may face
allegations that he or she disclosed a password to
someone other than the client.
The only time an attorney should consider keep-
ing a client’s password is if the account for that
password is also secured by multi-factor authentica-
tion in addition to the password.
Clients Should Regularly Backup Their Digital
Assets. Important information (whether on a com-
puter, smartphone, or other device) should be
regularly backed up. The fastest, most cost-eective
solution is physical storage in the client’s posses-
sion (e.g., external hard drive, DVD, or ash drive),
but this method is often subject to the same risks
as the original source. Floods, Žres, and theft can
result in the loss of both the original data and the
backup. While online backup services are typically
slower, the fact that the physical servers will lo-
cated at a distant location virtually assures that
the backup will not be susceptible to the same risks
as the original data. The best backup plan is one
that incorporates both local media and online
services.
Name the “Right46
” Agent. Many clients name as
their agent someone who lacks even the most
rudimentary computer skills. Dealing with online
custodians of digital accounts can be expected to
present challenges for any agent, and those chal-
lenges could well be insurmountable if the wrong
agent is selected. In these cases, consideration
should be given to suggesting to the client that a
separate power of attorney be executed that deals
with the digital powers only, appointing an agent
who would have a higher degree of competence in
dealing with digital assets.
Act Quickly Upon Incapacity. An agent may need
to act quickly upon the principal’s disability. Many
free online email services delete accounts following
relatively short periods of inactivity. Some clients
use email folders as their Žling system for impor-
tant information, and a review of the content of
emails is sometimes the only way to learn of the
existence of intra-family loans or of the amounts
currently owed on such loans—information that

could be of critical importance following the princi-
pal’s death. It is virtually impossible to determine
what might be important later on or after the
principal’s death, so the agent may want to backup
all email records quickly. Many clients do not keep
paper copies of bank or brokerage account state-
ments, relying upon their ability to access those
statements online. Many Žnancial institutions only
provide access to a limited number of prior account
statements (e.g., for the last 12 months), so the
agent may want to download those statements
while they are still available. It is the authors’
opinion, and apparently the opinion of the Justice
Department’s Computer Crime and Intellectual
Property Section,47
that an agent to whom digital
assets powers have been granted would not be
subjected to liability under either federal statute
for logging onto the principal’s account with the
principal’s password, even if that violated the TOS
of the provider. The more practical concern would
be that such a violation could result in the provider
terminating the account.
When an agent begins to act following the
principal’s lack of capacity, it is no longer sucient
to go through the principal’s mail or desk drawers
looking for unpaid bills or records of Žnancial
accounts. Many, if not most, of those types of things
that previously had a paper trail now exist primar-
ily or solely in digital form. Without access to the
principal’s email account, many bills may go
unpaid. Without having access to the principal’s
computer and account passwords, the agent will
not be able to access those Žnancial accounts that
exist primarily on the Internet.
When an Internet-capable device is connected to
an account, at least two computers are involved—
those of the account owner (e.g., the principal’s
laptop) and of the service provider. CFAA arguably
requires that the agent accessing the account have
authority to access the computer on each end. The
principal can clearly grant to the agent authority
to access her computer, but only the service pro-
vider can grant authority to access its server. That
authorization is often denied by Terms of Service
agreements.
For example, Facebook’s TOS provides that “[y]ou
will not solicit login information or access an account
belonging to someone else.” So, although the account
holder may authorize the Žduciary to access the ac-
count, the Žduciary may be exceeding authorized ac-
cess—within the meaning of the CFAA—by logging
into the Facebook account if that access violates
Facebook’s TOS.48
While UFADAA will likely resolve this problem at
both ends, it is possible that amendments may be
needed to both ECPA and CFAA. While there is a
“sense of doubt49
” about whether or not UFADAA
completely provides everything that is needed to
ensure Žduciary access, a totally complete solution
would also involve amendments to these two pre-
Internet acts. ECPA should be amended to add a
ninth exception listing Žduciaries as permissible
recipients of the contents of communications and
both ECPA and CFAA should be amended to deŽne
“authorization” in a way that permits Žduciaries to
grant the required consent.
Conclusion
“The last thing you should do.” —David Bowie
If we are looking for “a new career in a new
town50
,” it is estate planning for digital assets, and
as estate planners, we are “under pressure51
” to
help our clients plan for the disposition of their
digital assets in addition to the usual mix of real
and personal property. As is all too often the case,
the law lags far behind societal trends, as evidenced
by the application of pre-Internet federal law to
online accounts. Fortunately, UFADAA brings us a
world of “wishful beginnings52
,” lighting the way
forward so that problems with the major tech
companies should “slip away53
” The proposed Ohio
modiŽcations to our enactment of UPOAA arm
agents with the fullest level of authority permitted
by the new act. But that is not enough. As estate
planners, we need to make sure that our clients
who are entering their “golden years54
” understand
the scope of the issues presented by digital assets
and provide them and their designated decision
makers with the tools necessary to preserve and to
pass to others all that will remain behind—their
digital footprints: “here today and gone tomorrow55
.”
ENDNOTES:
1
Fascination, from Bowie’s 1975 album Young

Americans
2
18 U.S.C. 2510.
3
18 U.S.C. 1030. Title 2 of ECPA is referred to
as the Stored Communications Act.
4“Among the many technological achievements
that resulted from the funding of the Gore Bill, was
the development of Mosaic in 1993, the World Wide
Web browser software which is credited by most
scholars as beginning the Internet boom of the
1990s.” Wikipedia article on High Performance
Computing Act of 1991.
5
“Be My Wife,” a single released by Bowie in
1977.
6”Speed of Life” was Bowie’s Žrst instrumental
and is in his 1977 album Low.
7”Fame” was recorded by Bowie and released in
1975.
8
For $19.95 per month, users got a yourname@d
avidbowie.com email address, 5MB of online stor-
age to create a personal web page, access to
exclusive audio and video, and a chat room which
included live chats with Bowie himself.
9
“Saviour Machine” is from Bowie’s 1970 album
The Man Who Sold the World.
10
”Love Is Lost” is from Bowie’s album The Next
Day.
11“Where Are We Now?” is the Žrst track on
Bowie’s 2013 album, The Next Day.
12“Widow who wanted her dead husband’s Apple
ID so she could play games on their iPad is refused
and told to get a COURT order instead,” DailyMail.
com, January 20, 2016.
13
See Stix, Gary, “Gigabit Gestalt: Clinton and
Gore Embrace an Activist Technology Policy,” Sci-
entiŽc American, (May 1993, at 122-126).
14
“The Dreamers” is the 10th track on Bowie’s
1999 album, Hours, which has the distinction of be-
ing the Žrst complete album by a major artist avail-
able for download over the Internet prior to its
physical release.
15“Move On” is from Bowie’s 1979 album Lodger.
16“Law (Earthings on Fire)” is from Bowie 1997
album Earthlings.
17Spoken by the character Hobie Doyle, in the
Coen Brothers Žlm Hail, Caesar 2016. See https://w
ww.youtube.com/watch?v=kGpsXuMvApo.
18From a January 28, 2015 ACTEC letter to the
Senate Subcommittee on Privacy, Technology and
the Law and the House Subcommittee on Courts,
Intellectual Property, and the Internet.
1918 U.S.C. 2510.
2018 U.S.C. 1030. Title 2 of ECPA is referred to
as the Stored Communications Act.
21
The focus of CFAA was the prevention of
cybercrime against federal computers and bank
computers, by proscribing unauthorized disclosure
of protected information related to “national
defense or foreign relations,” “restricted data. . . as
deŽned in . . . of the Atomic Energy Act,” “infor-
mation that . . . could be used to the injury of the
United States.” CFAA also prohibits the unautho-
rized access of Žnancial records of Žnancial institu-
tions or from any department or agency of the
United States. Only incidentally does the CFAA
prohibit unauthorized access to “information from
any protected computer.”
22A protected computer is deŽned as a computer
“which is used in or aecting interstate or foreign
commerce,” which in turn has been judicially
construed as any electronic device capable of being
connected to the Internet. United States v. Mitra,
405 F.3d 492, 495-96 (7th Cir. 2005), a’d, 134 F.
App’x 963 (7th Cir. 2005), cert. denied sub nom. In
Mitra v. United States, 546 U.S. 979 (2005), the
Court held that any instrument capable of access-
ing the Internet, including cell phones and iPods,
falls within the deŽnition of “computer” under the
CFAA.
23
Little Wonder” is from Bowie’s 1997 album
Earthling.
24
“Outside” is the title of a Bowie 1995 concept
album.
25
For a detailed discussion of this issue, see The
Digital Death Conundrum: How Federal and State
Laws Prevent Fiduciaries from Managing Digital
Property, James D. Lamm, Christina L. Kunz,
Damien A. Riehl, and Peter John Rademacher, Uni-
versity of Miami Law Review, Vol. 68, 385.
2618 U.S.C. § 2702(a) prohibits a provider of an
electronic communication and computing services
from knowingly divulging the contents of a person’s
electronic communications.
27 18 U.S.C. § 1030 provides:
(a) Whoever
(2) intentionally accesses a computer without au-
thorization or exceeds authorized access, and
thereby obtains—
(C) information from any protected computer;
shall be punished as provided in subsection (c) of
this section.
28LVRC Holdings LLC v. Brekka, 581 F.3d 1127,
1132-33 (9th Cir. 2009) interpreted “authorization”
as meaning any permission at all.
29Digital Passing: Oh, What a Tangled Web We
Weave, James D. Lamm, 58th Annual Estate Plan-
ning Seminar, Seattle, WA (Oct. 21, 2013).
30
Unwashed and Somewhat Slightly Dazed” is
from Bowie’s 1969 album David Bowie.
31”What’s Really Happening?” is from Bowie’s
1999 album Hours.
32
In Senate Report 99-541 from the Committee

on the Judiciary, the analysis of § 2702 states the
following:
The exceptions to the general rule of nondisclo-
sure provided in subsection (b) fall into three cate-
gories. The Žrst category are those disclosures
which are authorized by either the sender or
receiver of the message. Either the sender or the
receiver can directly or through authorized
agents authorize further disclosures of the contents
of their electronic communication. (Emphasis
added.)
33
“Tumble and Twirl” is from Bowie’s 1984
album Tonight.
34Access to the content of the principal’s elec-
tronic communications should be expressly granted
in the power of attorney because it is not clear
whether reference to the statutory section is suf-
Žcient to comply with federal law.
35Supra, n. 12, at pages 418-9, with minor revi-
sions tailoring the provision to Ohio law.
36“A Small Plot of Land,” is from Bowie’s 1995
album Outside.
37”Miracle Goodnight” is from Bowie’s album
Black Tie White Noise.
38
”Moonage Daydream” is a Bowie song from his
1972 breakout album The Rise and Fall of Ziggy
Stardust and the Spiders from Mars.
39
David Bowie recorded a version of the song for
his 1984 album Tonight.
40
”Some Are” is a song by Bowie recorded dur-
ing the Low sessions in 1976 and released as a
bonus track on the release of Low in 1991.
41
Available at http://www.digitalpassing.com/wo
rdpress/wp-content/uploads/2012/08/DigitalAudit.
pdf.
42
Paul, Ian, “How to change your passwords
automatically with Dashlane and LastPass,” Mac-
World, May 6, 2016, accessible at http://www.macw
orld.com/article/3065969/security/how-to-change-yo
ur-passwords-automatically-with-dashlane-and-last
pass.html#tk.rss all.
43“Try Some, Buy Some” is a 1971 George Har-
rison song. A longtime admirer of the song, Bowie
version is in his 2003 album Reality.
44
“Tips for creating a strong password,” acces-
sible at http://windows.microsoft.com/en-US/windo
ws-vista/Tips-for-creating-a-strong-password.
45
Id.
46“Right” is a song from Bowie’s 1975 album
Young Americans.
47See n. 16, supra.
48Supra, n. 12, at page 401.
49“Sense of Doubt” is an instrumental piece writ-
ten by Bowie for his 1977 album Heroes.
50“A New Career in a New Town” is an instru-
mental piece by Bowie from his 1977 album Low.
51
“Under Pressure” is a 1981 song originally re-
corded by Queen and David Bowie, and later
included on Queen’s 1982 album Hot Space.
52
“Wishful Beginnings” if from the 1995 album
Outside.
53“Slip Away” is Bowie’s homage to New Jersey
“Uncle” Floyd Vivino, a vaudeville-styled comedian.
54
“Golden Years” is from Bowie’s 1975 album
Station to Station.
55“Here Today and Gone Tomorrow” was not
written by Bowie, but he performed it on his
Diamond Dogs tour in 1974, and it was released as
a bonus track on the 1990 Rykodisc reissue of the
live album David Live.
WILLS AND TRUSTS: UPDATING
OHIO’S PRE-MORTEM
VALIDATION LAW
By Ralph Lehman, Esq.
Logee, Hostetler, Stutzman & Lehman
Wooster, Ohio
Chairman, EPTPL Committee for Validation of Wills
and Trusts Before Death
Currently, Ohio law allows a living testator to
have the probate court determine if the testator’s
will is valid and, if determined to be valid, to
prevent a post-death challenge to the will. The
Estate Planning, Trust and Probate Law Section of
the Ohio State Bar Association (OSBA) has pro-
posed modiŽcations to the procedure, and to allow
a similar procedure for trusts.
The proposal would replace Sections 2107.081 to
2107.085 of the Revised Code with Chapter 5817 of
the Revised Code.
Current Ohio Law. Ohio’s current pre-mortem
statute provides that:
E The complaint must be Žled in the probate
court located in the testator’s county of domi-
cile and, if not domiciled in Ohio, the county
in which any of the testator’s real property is
located.1
E The complaint must name the following as
defendants: beneŽciaries under the will, and
those who would inherit if the testator died on
the date the complaint is Žled.2
E After notice to all defendants, the court con-
ducts a hearing.3

E The court will declare the will valid if it Žnds
that the will was properly executed and that
the testator had testamentary capacity and
was not under restraint.4
E If determined valid, the will is sealed and Žled
in the oces of the probate court. Only the
testator can remove it during the testator’s
lifetime and, if removed, the declaration of va-
lidity no longer has any eect.5
E The will may be revoked by asking the court
to revoke the will using the same procedure as
in obtaining the declaration of validity, or it
may be revoked by any method permitted
under R.C. § 2107.33.6
E The will declared valid may only be modiŽed
by codicil if the codicil is declared valid by the
same procedure as the will.7
E A will that has been declared valid, and has
not been removed from the probate court’s pos-
session, is not subject to a post-death will
contest, unless the party contesting it was
required to be a defendant in the pre-mortem
validity proceeding, and was not named or
properly served.8
Why Change the Current Law? There are at
least two reasons to change the current law. First,
Ohio’s pre-mortem statute was passed in 1979
when a will was the primary instrument to dispose
of one’s assets at death. Estate planning has
evolved and the inter vivos or living trust is now
commonly used in estate plans. The evolution of
estate planning makes this change necessary.
Second, the proposal is necessary if the principle
underlying the 1979 law is still important. That
principle is the belief that a testator, if he or she
chooses, should be permitted to participate in a
proceeding in which the testator’s will is chal-
lenged, and that the testator’s participation makes
for a better determination as to the issues of capa-
city and undue inuence.
Without the testator/settlor present when these
issues are determined, we are left with the “worst
evidence rule,” a phrase coined by professor John
Langbien who said: “Our probate procedure follows
a ‘worst evidence’ rule. We insist that the testator
be dead before we investigate the question whether
he had capacity when he was alive.”9
Issues of capa-
city and undue inuence are best resolved when
the testator or settlor is alive and part of the
proceeding.
Other States. The pre-mortem procedure is a
declaratory judgment action, but a declaratory
judgment action to determine the validity of one’s
will or trust before death requires speciŽc statutory
authorization beyond the state’s version of the
Uniform Declaratory Judgment Act.
This appears to be contrary to the language in
the uniform act. For instance, Ohio’s version, at
R.C. § 2721.03, states in pertinent part, “any person
interested under a. . .will, written contract, or
other writing constituting a contract. . .may have
determined any question of. . .validity arising
under the instrument. . .and obtain a declaration
of rights, status, or other legal relations under it.”
Notwithstanding this language, the courts have
consistently held that, absent a statute expressly
conferring such jurisdiction, they have no jurisdic-
tion because the controversy is not ripe, in that the
will can be changed, the assets may be depleted,
and the actual heirs at law are not known until the
testator dies.10
The following states have adopted statutes
expressly authorizing pre-mortem actions to deter-
mine the validity of trusts and/or wills:
E Alaska—Wills and Trusts (adopted in 2010)11
E Arkansas—Wills (adopted 1979)12
E Delaware—Wills (adopted in 2000)13
and
Trusts (adopted in 2015)14
E Nevada—Wills and Trusts (adopted in 2009)15
E North Dakota—Wills (adopted 1977)16
E North Carolina—Wills (adopted 2015)17
E Ohio—Wills (adopted 1979)18
The details of the pre-mortem procedures vary
from state to state. However, all of the states
provide for a “contest model” and all, except Dela-

ware, adopted a “Žling statute.” This means the
grantor or settlor must Žle a complaint in the ap-
propriate court, certain necessary parties are given
notice of the Žling, and those receiving notice have
the right to challenge the document in an adver-
sarial proceeding in open court.
Delaware, alone among the states, has a “notice
statute.” It does not require the testator or settlor
to Žle a complaint. It allows a testator or settlor to
give written notice of the existence of the will (with
a copy of the will) or existence of the trust (and no-
tice as to whether that person is a beneŽciary under
the trust) to anyone the testator or settlor chooses.
If the person receiving notice does not Žle an action
to contest the will or trust within 120 days after
receipt of notice, that person is barred from later
doing so. Those not given notice are not barred from
later contesting the will or trust.
Is the Current Ohio Pre-Mortem Statute
Used? The pre-mortem statute is used, but not
widely. In March 2011, Ohio attorneys who were
members of the American College of Trust and
Estate Counsel and/or were OSBA certiŽed special-
ists in estate planning, trust and probate law, were
surveyed and asked if they have used this statute
and whether they think it is useful.19
Of the 218 attorneys contacted, 103, or 47%,
responded. Twenty-eight said they had used the
procedure, in some cases more than once, for a total
of 46 times. In addition, 63 felt the procedure was a
useful means of avoiding probate, 17 felt it was not
useful, and 9 indicated they were uncertain.
The reasons for not using the statute included:
a) if a client wants to change a will that is declared
valid, they must go through the same procedure
again, and b) the procedure applies only to wills,
not trusts, which are now the primary estate plan-
ning document. The EPTPL Section’s proposal ad-
dresses these concerns.
Summary of Proposal. The EPTPL Section’s
proposal contains 14 sections, each of which is
discussed below.
General DeŽnitions. A few terms that are used
in the proposal require deŽnitions.
“BeneŽciary under a will” means “any person
designated in a will to receive a testamentary dis-
position of real or personal property.” This is the
same language used in R.C. § 2107.73(A) which
names the necessary parties to a post-death will
contest. However, the proposal’s deŽnition also
includes a person who holds a power of appoint-
ment over estate assets, but excludes “the class of
permitted appointees.”
“BeneŽciary under a trust” means any person
who has a present or future beneŽcial interest in a
trust, whether vested or contingent, and includes
one who has a power of appointment over trust
property. This is the same deŽnition of “beneŽciary”
as under the Ohio Trust Code, at R.C. § 5801.01(C).
However, unlike the latter, the proposal’s deŽnition
expressly excludes “the class of permitted
appointees.”
For instance, if a settlor in the trust grants his
son a “testamentary general power of appointment”
over trust property, the son could, at his death, ap-
point or direct those assets to any person or organi-
zation he chooses. Under the proposal deŽnition,
the son is a beneŽciary under the trust, and would
be required to be named as a defendant. However,
the class of appointees (any person or organization
in the world) is not a required defendant.
“Court” is the probate court of the county in
which the complaint is Žled.
“Related will” and “related trust” are deŽned
because if a complaint is Žled to determine the va-
lidity of a trust, the settlor must also Žle a com-
plaint to determine the validity of a “related will.”
Likewise, if a complaint is Žled to determine the
validity of a will, the testator must also Žle a com-
plaint to determine the validity of a “related trust.”
The reasons for this requirement are explained
below; however, the will and trust are related if the
testator and settlor are the same person, and if the
will names the trust as a beneŽciary.
The term “trust” means an inter vivos revocable
or irrevocable trust which, at the time the com-
plaint is Žled, either a) the settlor resides in, or is
domiciled in Ohio, or b) the trust’s principal place
of administration is in Ohio. The term excludes
oral trusts which are recognized as valid under the

Ohio Trust Code, at R.C. § 5804.07, if proved by
clear and convincing evidence.
Establishment of Will Validity Before Death.
This section authorizes a testator to Žle a complaint
to determine the validity of the testator’s will before
the testator’s death. This right is personal to the
testator and may not be exercised by the testator’s
guardian or an agent under a durable power of
attorney.
There is an unresolved issue under the current
pre-mortem statute. It is illustrated by assuming
the following facts: Client executes a will and an
inter vivos trust. The will provides that the residu-
ary estate is “poured over” to the trust, and includes
language incorporating the trust as part of the will
if the trust is determined to be invalid. Testator,
under the current pre-mortem statute, obtains a
declaration that the will is valid. Testator dies and
the will is admitted to probate court. Later, a
disgruntled heir (who had no knowledge of what
was in the trust) who failed to challenge the will in
the pre-mortem proceeding Žles an action challeng-
ing the validity of the trust.
Under these facts, is it possible for the heir to
successfully challenge the trust? A good argument
could be made that the answer is “no.” If the trust
were determined to be invalid, it simply becomes
part of the will, which already has been determined
to be valid, and cannot be challenged.
There is authority for this position. In Hageman
v. Cleveland Trust Co., 45 Ohio St. 2d 178 (1976).
Decedent’s will contained a pour over provision to
an inter vivos trust. The disgruntled sole heir
unsuccessfully challenged the will. A year later he
challenged the trust on the basis that it had
contained no corpus when it was established, a
requirement at that time. The Ohio Supreme Court
found that even if the trust was invalid, the trust
was incorporated by reference and made a part of
the will, which had been found to be valid in the
prior will contest. In short, the heir’s only way to
challenge a trust that is incorporated into a will by
reference is through a will contest and, if the will
has previously been determined to be valid, there
is no remedy.
Surprisingly, in Hageman, the trust contained
no incorporation by reference language, and the
trust was not deposited with the probate court
within 30 days after the will was admitted to
probate, both of which appear to be requirements
under R.C. § 2107.05. See, Hayes Memorial United
Methodist Church v. Artz, 2011-Ohio-3847, in which
the court found that a beneŽciary of a trust named
in the will was not a necessary party under Ohio’s
pre-mortem statute and, therefore, could not bring
a post-death will contest. The court found that the
neither the trust, nor the trust beneŽciary, was a
beneŽciary of the will, at least in part, because the
trust was not incorporated by reference and made
part of the will since the trust had not been
deposited with the probate court within the 30
days, as required by R.C. § 2107.05.
The proposal resolves this issue by requiring a
testator who Žles a complaint to determine the va-
lidity of the will to also Žle for a validity determi-
nation as to the “related trust.” It would be unfair,
and perhaps subject to a constitutional challenge, if
one could protect a trust by obtaining a determina-
tion that a “pour over will” is valid, without giving
the defendants notice of the dispositive provisions
in the trust, or any ability to challenge the trust.
Ohio law provides that the physician-patient
privilege is waived in a post-death will contest if
the communication is relevant to the issues.20
There
is no similar provision for a pre-mortem proceeding.
The proposal changes this by requiring the testator
who Žles a complaint to waive the testator’s
physician-patient privilege. This allows those chal-
lenging the will access, as they would have in a
post-death contest, to medical information that may
relate to capacity or susceptibility to undue
inuence.
Ohio law also waives the attorney-client privi-
lege in a post-death will contest. Although there
was discussion about also requiring a similar
waiver in the pre-mortem proceeding, the EPTPL
Section did not feel this was warranted, at least in
part, because the testator is alive and a participant
in the proceeding.
Establishment of Trust Validity Before
Death. This section authorizes a settlor to Žle a
complaint to determine the validity of the settlor’s
trust before the settlor’s death.

This section mirrors the previous section relat-
ing to wills, in that the right to Žle a complaint is
personal to the settlor, the settlor must waive the
physician-patient privilege, and if there is a “re-
lated will,” the settlor must Žle a validity determi-
nation for both the will and trust.
Jurisdiction and Venue. The testator or set-
tlor must Žle the complaint with the probate court.
However, the probate judge has the discretion,
upon the motion of a party or the judge’s own mo-
tion, to transfer the proceeding to the general divi-
sion of the common pleas court. The ability to
transfer was added because, in some instances, the
probate judge may feel the general division is bet-
ter equipped to handle a contested proceeding
involving a trial.
The venue for a testator’s complaint is the county
of the testator’s domicile and, if not domiciled in
this state, the county in which the testator’s real or
personal property is located and, if none, the
probate court of any county in this state.
The venue for a settlor’s complaint is the county
in which the settlor resides or is domiciled and, if
neither apply, the county in which is located the
trust’s principal place of administration.
Contents of Complaint for Will Validity. The
testator’s complaint must name as party defendants
the testator’s spouse, the testator’s children, the
testator’s heirs who would take if the testator died
intestate, beneŽciaries under the testator’s will,
and any beneŽciary under the testator’s most
recent prior will. The current Ohio pre-mortem
statute does not require the testator to name the
beneŽciary under the testator’s most recent prior
will.
The testator may name, as a party defendant,
any other person the testator believes may have a
pecuniary interest in the determination of the va-
lidity of testator’s will. This reminds the testator to
consider naming as a defendant one who is not a
required defendant, but who might, if not named,
have a right to bring a post-death will contest. Sec-
tion 2107.71 of the Revised Code permits any
“person interested in the will” to contest that will.
Ohio courts have deŽned this phrase to mean a
person who has a pecuniary interest in the testa-
tor’s estate. This might, for instance, include some-
one granted an option in the will to purchase a farm
at a price below its appraised value.21
The proposal also provides a list of 11 statements
that may be included in the complaint. This diers
from the current pre-mortem statute which simply
says the complaint “may be Žled in the form
determined by the probate court of the county in
which it is Žled.”22
This change is intended to
provide some guidance to the testator’s attorney
and make the statute more user-friendly.
Contents of Complaint for Trust Validity.
This section applies to a complaint Žled by the set-
tlor and mirrors the prior section dealing with wills.
The required defendants are: the settlor’s spouse,
the settlor’s children, the settlor’s heirs who would
take if the settlor died intestate, the trustees, bene-
Žciaries under the settlor’s trust, and, if the trust
amends, or amends and restates, or replaces a prior
trust, any beneŽciary under the most recent prior
trust.
As with a will complaint, the settlor may name
any other party the settlor believes may have a
pecuniary interest in the determination of the va-
lidity of the trust.
As with the will complaint, this section includes
a list of statements that may be included in se-
ttlor’s complaint, to provide the settlor’s attorney
guidance and make it easier to use this procedure.
Service of Process. Service of process of the
complaint and will, or complaint and trust, or com-
plaint and will and trust, must be made on every
party defendant as provided in the applicable rules
of civil procedure.
Hearing. The court must schedule a hearing on
the complaint, whether contested or not. Notice of
the hearing must be given to the testator or settlor
and all party defendants as provided in the ap-
plicable rules of civil procedure. The hearing is
adversarial in nature.
Burden of Proof. The testator or settlor has
the burden to establish prima facie proof of the ex-
ecution of the will or trust.
The person opposing the complaint has the

burden to establish one or more of the following:
lack of testamentary intent, lack of capacity, undue
inuence, fraud, duress, mistake, or revocation.
The party who has the initial burden of persua-
sion has the ultimate burden of persuasion as to
those matters.
Declaration by Court. If the will is declared
valid then, after the death of the testator, unless
the will is modiŽed or revoked after the declara-
tion, it shall be admitted to probate.
If the trust is declared valid, and unless the trust
is modiŽed or revoked after the declaration, the
trust has full legal eect.
Binding Eect of Declaration. After the
testator’s death, the only person who may contest a
will or trust that has been declared valid, is a
person who should have been named in the pre-
mortem proceeding and that person was either not
named or was not properly served.
The failure to name a party defendant is not
jurisdictional. The failure of the testator or settlor
to name a necessary party does not open the door
and allow a party that was named and properly
served to attack the will or trust.
This section applies the virtual representation
rules of Chapter 5803 of the Revised Code to the
pre-mortem proceeding. Chapter 5803 of the Re-
vised Code speciŽes persons who may represent
others in judicial proceedings and certain other
matters. Generally, in the absence of a conict of
interest, (a) the holder of a general testamentary
power of appointment may represent the interests
of permissible appointees and takers in default, (b)
Žduciaries may represent those to whom they owe
Žduciary duties, (c) parents may represent minor
or unborn children, and (d) a person with a substan-
tially identical interest may represent a minor, in-
capacitated, or unborn individual, or a person who
cannot be located.
This section makes it clear that the virtual rep-
resentation rules are applied at the time of the pre-
mortem proceeding and not at the death of the
testator or settlor. It is sucient if the representa-
tive falls within the virtual representation statute
at the time the pre-mortem complaint is Žled, even
if that is not the case when the testator or settlor
dies.
Change to Will after Declaration. This sec-
tion changes current law by allowing a testator to
amend a will by a codicil that is not declared valid
as was the will. However, the codicil is not protected
by the will declaration, but the balance of the will,
not aected by the amendment, remains protected
by the earlier declaration.
If a will declared valid is later amended or
revoked, and that later amendment or revocation is
determined to be invalid, the declaration of valid-
ity, as to the original will, is binding.
Change to Trust after Declaration. A trust
declared valid may later be modiŽed, terminated or
revoked.
If a trust declared valid is later revoked by a
new trust or other document, and the later trust or
other revocation is determined to be invalid, the
declaration of validity, as to the original trust,
remains binding.
If a trust declared valid is later amended, the
amendment is not protected by the earlier declara-
tion, unless the settlor obtains a declaration of va-
lidity as to the amendment. The balance of the
trust, not aected by the amendment, remains
protected by the earlier declaration.
ConŽdentiality. This section provides that the
Žndings of fact in a pre-mortem proceeding is not
admissible as evidence in any proceeding other
than one brought to determine the validity of a will
or trust. The judgment in the pre-mortem proceed-
ing is not binding in any action not brought to
determine the validity of a will or trust.
Conclusion. Most estate planners have encoun-
tered situations in which the client’s wishes involve
an unusual disposition. The planner believes the
client to be competent and not unduly inuenced.
Nevertheless, there will be disgruntled heirs who
may want to challenge the will or trust, and engage
the estate in lengthy, costly litigation. The planner
has discussed with the client alternative plans and
informed the client of the potential for litigation.

The client remains Žrm and knows what he or she
wants. In such a situation, the estate planner has a
duty to help the client protect the client’s plan.
While there are other methods of protecting a
client’s plan that should be considered Žrst, the
pre-mortem declaratory judgment alternative is
one that should be available and mentioned to the
client in the right situation.23
ENDNOTES:
1R.C. § 2107.081.
2R.C. § 2107.081(A).
3R.C. § 2107.083.
4R.C. § 2107.084(A).
5
R.C. § 2107.084(B).
6
R.C. § 2107.084(C) and R.C. § 2107.084(D).
7R.C. § 2107.084(D). What is the result if a will
declared valid is modiŽed by a codicil for which no
pre-mortem validity determination is made? It
seems to the author there are several possible
interpretations. First, the will remains valid and
the codicil is void. Second, the will remains valid,
and the codicil may be probated with the will, but
only the will has the protection of the pre-mortem
decision. Third, both the will and codicil are void.
8R.C. § 2107.084(E) and R.C. § 2107.71(B).
9Langbien, Undue Inuence: The Epic Battle for
the Johnson and Johnson Fortune, 103 Yale L. J.
2039-2048, 2044 (1994).
10
See, Cowan, et al. v. Cowan, et al., 254 S.W.
2d 862 (Tex. Civ. App.—Amarillo 1952) which
refers to similar cases in Michigan and Alabama.
11AS §§ 13.12.530—13.12.590.
12A.R.S. §§ 28-40-201—28-40-203.
1312 Del. § 1311.
1412 Del.C. § 3546.
15
Nev. Rev. Stat. § 30.040.
16
N.D.C.C. §§ 30.1-08.1-01—30.1-08.1-04.
17N.C.G.S. §§ 28A-2B-1—28A-2B-6.
18R.C. §§ 2107.081—2107.085.
19
Ralph Lehman, Determining the Validity of
Wills and Trusts—Before Death, Probate Law
Journal of Ohio, July-August, 2011, at 247.
20R.C. § 2317.02(B)(1)(e).
21
See, John J. Geiger v. Paul E. Geiger, Executor
of the Estate of Elizabeth R. Steinberger, 81-LW-
2563 (1981), where the court found that, for pur-
poses of a post-death will contest, the optionee
under an option to purchase a farm at below fair
market value had a direct pecuniary interest in the
estate, and was a required defendant in the will
contest as “other interested parties.”
22
R.C. § 2107.081(A).
23
Including a strong “no-contest” provision in
the will or trust is another way of protecting a
client’s plan, but is only eective if the person who
is likely to object is given enough under the plan to
discourage a contest. An interesting question is
whether the “no contest” provision would apply in a
pre-death challenge. The author believes it would.
Some believe that a video tape of the will and
trust execution will provide strong evidence, but,
unless done routinely, it may also be seen as a
strong indication that the attorney had questions
about the validity of the plan.
In the author’s experience, one of the best ways
to prevent a post-death challenge, in the family sit-
uation, where one or more children will receive a
disproportionate share, is to have the parents dis-
close the plan to the children, and explain the
reasons for the unequal treatment.
In the author’s opinion, one of the situations in
which the pre-mortem proceeding is useful is where
the client wants to pass ownership of a farm or
other business to the child who is the successor,
and the client believes this cannot be done if the
children are treated equally. In such a situation,
especially if the client’s relationship with the child
most likely to challenge the plan is already bad
and, unfortunately, in the client’s view cannot be
repaired, the pre-mortem proceeding may avoid a
challenge altogether, or if challenged in the pre-
mortem proceeding, at least the client can partici-
pate to counter charges of incapacity or undue
inuence. In such a situation, in the author’s
opinion, the best protection is seek a pre-mortem
declaration that the will and trust are valid and, if
the disgruntled heir is given a signiŽcant amount,
albeit less than the business successor, to include
in the documents a strong no contest provision
which the author believes would be applicable to a
challenge in the pre-mortem proceeding.
OHIO’S ANTI-LAPSE STATUTE
AND THE PROPOSED STATUTORY
RESPONSE TO CASTILLO V. OTT
By Brian Layman, Esq.
Layman, D’Atri & Associates
Canton, Ohio
Chairman, EPTPL Section Committee on Antilapse
Statute
As a general rule, ORC Section 2107.52 provides
that when a Will makes a gift to a class and a
member of the class predeceases the testator that a
substitute gift will be made to the descendants of

the deceased class member. Section 2107.52(B)(2)(b)
provides an exception to the general rule when the
class is deŽned as “issue,” “descendants,” “heirs of
the body,” “heirs,” “next of kin,” “relatives,” or “fam-
ily,” or a “class described by language of similar
import.”
In Castillo v. Ott, 2015-Ohio-905 (6th Dist.), the
court determined that “children” was a class
described by language of similar import which
prevented a substitute gift for the deceased child’s
descendants.
The Castillo case involved a will leaving the
estate to decedent’s “children, share and share
alike.” One child predeceased the testator, leaving
children. The Court was forced to choose between
making distribution all to the surviving children or
a share also to the children of the deceased child.
There were no words of survivorship. The Court
analyzed the anti-lapse statute as provided in Sec-
tion 2107.52.
The court held that the language “or a class
described by language of similar import,” includes
a class gift to children. As a result, there was no
substitutionary gift and the children of the deceased
child did not take. The Castillo decision is contrary
to the policy of Ohio’s anti-lapse statute and com-
ments to the Uniform Probate Code, upon which
the statue is based, because each of the other
classes described in Section 2107.52(B)(2)(b) are
multi-generational. A gift to “children,” by contrast,
is a gift to a single generation class.
The problematic language in 2107.52(B)(2)(b)
was taken from the UPC (see 2-603(b)(2) [and
2-707(b)(2)]). The UPC comments distinguish a
multi-generation and a single generation class gift.
Below is the comment to 2-603:
Class Gifts. In line with modern policy, subsection
(b)(2) continues the pre-1990 Code’s approach of
expressly extending the antilapse protection to class
gifts. Subsection (b)(2) applies to single-generation
class gifts (see Restatement (Third) of Property:
Wills and Other Donative Transfers §§ 14.1, 14.2
(2008)) in which one or more class members fail to
survive the testator (by 120 hours) leaving descen-
dants who survive the testator (by 120 hours); in or-
der for the subsection to apply, it is not necessary
that any of the class members survive the testator
(by 120 hours). Multiple-generation class gifts, i.e.,
class gifts to “issue,” “descendants,” “heirs of the
body,” “heirs,” “next of kin,” “relatives,” “family,” or a
class described by language of similar import are
excluded, however, because antilapse protection is
unnecessary in class gifts of these types. They al-
ready contain within themselves the idea of repre-
sentation, under which a deceased class member’s
descendants are substituted for him or her. See Sec-
tions 2-708, 2-709, 2-711; Restatement (Third) of
Property: Wills and Other Donative Transfers
§§ 14.3, 14.4 (2008).
The Ohio statute would be made clear by reference
to the UPC Comment, but the Castillo Court did
not mention the Comment and probably did not
have it. Ohio does not incorporate uniform law com-
ments, and courts tend to read our statutes without
them. The Anti-Lapse Committee1
and Section
Council proposed to clarify that the exception to
the anti-lapse protection applicable to Wills only
applies to gifts to multi-generational classes by add-
ing the following underscored language:
(b) If the devise is in the form of a class gift, other
than a devise to “issue,” “descendants,” “heirs of the
body,” “heirs,” “next of kin,” “relatives” or “family,”
or a class described by language of similar import
that includes more than one generation, a substitute
gift is created in the surviving descendants of any
deceased devisee.
The same statutory language exists in Ohio Trust
Code Section 5808.19(B)(1)(b)(ii). To maintain con-
sistency regarding the interpretation of wills and
trusts, the Anti-Lapse Committee and Section
Council proposed to clarify that the exception to
the anti-lapse protection applicable to Trusts only
applies to gifts to multi-generational classes by add-
ing the following underscored language:
(ii) If the future interest is in the form of a class gift,
other than a future interest to “issue,” “descendants,”
“heirs of the body,” “heirs,” “next of kin,” “relatives,”
or “family,” or a class described by language of simi-
lar import that includes more than one generation, a
substitute gift is created in the surviving descen-
dants of the deceased beneŽciary or beneŽciaries.
Both of the proposed statutory clariŽcations have
been passed by the Screening Committee and by
the Council of Delegates. The clariŽcations are now
ready for a legislative sponsor.
ENDNOTES:
1The Committee consists of Robert Brucken,

Steve Dauterman, Adam Fried, Patricia Pacenta,
Susan Racey, and Daniel Ramer. In addition, the
Committee would like to thank John Clark and
Prof. Alan Newman for their input.
SUPERINTENDENCE RULE 66
AND ITS IMPACT ON YOUR
GUARDIANSHIP PRACTICE
By Colleen B. Laux, Esq.
Vorys, Sater, Seymour & Pease LLP
Cincinnati, OH
OSBA CertiŽed Specialist, Estate Planning, Trust &
Probate Law
Based on a CLE presentation given by the author at
the OSBA All-Ohio Legal Forum on April 29, 2016.
BACKGROUND TO ENACTMENT
Superintendence Rule 66 was adopted on March
1, 2015 and became eective on June 1, 2015,
enacting numerous changes to the handling of
guardianships in Ohio. While issues related to
guardianship reform have been studied for the past
several years, it was the May 2014 Columbus
Dispatch series, Unguarded,1
which brought the is-
sue statewide attention. Many of the new rules
enacted are a direct response to the problems and
abuses highlighted by the series.
The new rules are based on The National Guard-
ianship Association’s “Standards of Practice for
Guardianships” which seek to protect adult wards
by advancing consistent and clear national stan-
dards for all guardians.2
The rules seek to standardize practices through-
out the state by establishing minimum standards
and responsibilities of both the local probate courts
and the guardians appointed by the courts. The
rules cover a wide range of topics designed to
protect and ensure that the best interests of adult
wards are met.
The goals of the new rules, among other things,
are to create “people-centered” planning for wards,
emphasize having more educated and knowledge-
able guardians, and impose a more active role on
the courts to ensure that the guardians they ap-
point are serving the needs of their wards.3
Guard-
ians are encouraged to foster positive relationships
with their wards, to have ongoing communications
with their wards, to monitor and coordinate ben-
eŽts, and where appropriate, to always look for the
least restrictive alternative to a guardianship.
TO WHOM DO THE NEW RULES APPLY:
SUP. R. 66.02
The new rules only apply to adult guardianships
where the probate court has appointed a legal
guardian of the person and/or estate of a ward.
They apply to both individuals and employees of a
corporation, such as a bank, who have been ap-
pointed as guardian.
The courts, however, may exempt guardians re-
lated by consanguinity or anity from the rules. It
is highly suggested that the practitioner review
their court’s local rules and to familiarize them-
selves with their particular county’s application of
many of these new rules.
NEW EDUCATION REQUIREMENTS FOR
GUARDIANS: SUP. R. 66.06 AND 66.07
As noted, one of the goals of the new guardian-
ship rules is an emphasis on having educated and
knowledgeable guardians. To this end, the rules
created two new educational requirements for
guardians: pre-appointment training and continu-
ing education.
The rules require that all new guardians, either
prior to their appointment, or within six months of
their appointment, must attend a six hour course
regarding the fundamentals of guardianship.4
In
addition, all existing guardians (those who had
been appointed prior to June 1, 2015) are required
to take the six hours fundamental course by June
1, 2016.5
The fundamentals course is required to include,
at a minimum, education on the following topics:
E Establishment of the guardianship
E The ongoing duties and responsibilities of a
guardian
E Record keeping and reporting duties of a
guardian

E Any other topic that concerns improving the
quality of life of a ward
These classes have been developed and are being
oered through the Ohio Supreme Court. They can
be attended in person, via a live course or a video
replay at sites across the state, or online. The class
is free, but pre-registration is required. In addition,
classes marked as “Professional” will earn free CLE
or CEU credits for attendees. Information regard-
ing the classes can be found at: https://www.supre
mecourt.ohio.gov/Boards/judCollege/adultGuardian
ship/fundamentals.asp.
In addition to the initial six hours fundamentals
class, guardians will also be required to take a
three hour continuing education class each year.6
The Ohio Supreme Court is currently developing
these continuing education classes. A guardian is
required to provide documentation to the court on
or before January 1 of each year certifying that
they are in compliance with the ongoing educational
requirements.7
While the rules do not impose any penalty for a
guardian’s failure to fulŽll the initial fundamentals
training requirement, should they fail to comply
with the continuing education requirement, they
are not eligible for appointment as guardian in any
future guardianship matter until the educational
requirements have been completed.8
Missing from
the rules is the ability of the local probate court to
remove a guardian solely due to their failure to
satisfy any of the educational requirements.
CRIMINAL BACKGROUND CHECKS: SUP. R.
66.05
Local probate courts are now required to conduct
criminal background checks on all applicants for
appointment of guardian, prior to the establish-
ment of the guardianship. The rules, do not,
however, specify any speciŽcs on how the back-
ground checks are to be conducted, thus they seem
to vary from county to county. For example, in
Clermont County, an applicant is required to be
Žngerprinted;9
Franklin County requires a formal
BCI background check, which the applicant must
initiate,10
while Hamilton County performs a
background check by running the applicant’s name
through a criminal database. Further, a recent
survey of the counties across the state revealed
that many counties were already conducting some
sort of background checks of applicants prior to the
enactment of the new rules. It is also signiŽcant to
note, that nothing in the rules speciŽcally prohibits
an applicant with a criminal background from be-
ing appointed as a guardian.
Absent from the issue of background checks is
how to pay for them. SpeciŽcally, in the counties
where an outside agency is conducting the checks,
there does not appear to be a mechanism to cover
the costs of the checks for indigent guardianships.
For example, in Clermont County, an applicant is
required to pay the Sherri directly for the costs of
Žngerprinting. When surveying the counties in
Ohio, one county representative responded that
they were still trying to Žnd an aordable way to
implement this new requirement since the local
probate court does not have the funds to conduct
the checks and a large percentage of their guardian-
ship cases are indigents.
Finally, it should be noted that an attorney ap-
plying to be appointed as guardian may be ex-
empted from the requirement of a formal criminal
background check if they Žle a certiŽcate of good
standing with the court.11
ANNUAL PLANS: SUP. R. 66.08
In addition to the current Guardian’s Report12
and Guardianship Accounts,13
required by statute,
the new rules now require that each year, guard-
ians prepare and Žle an annual plan which sets for
the guardian’s goals for meeting the ward’s personal
and Žnancial needs. Currently there is no standard
probate form for the annual plan, however the
Supreme Court has circulated a proposed form
which several counties are currently using. Many
other counties have developed their own speciŽc
forms to meet the annual plan requirement.
An informal review of many of the pleadings be-
ing used throughout the counties shows that the lo-
cal probate courts are seeking more detailed infor-
mation concerning the ward’s medical and other
care providers, including anticipated changes to
any providers, information concerning the ward’s

employment, social, and recreational activities;
more detailed information concerning the ward’s
Žnancial recourses, including those which are not
necessarily part of the guardianship estate; as well
as the guardian’s goals for the ward during the
coming year.
NEW RULES AND RESPONSIBILITIES FOR
GUARDIANS: SUP. R. 66.08 AND 66.09
Guardian have always had certain legal respon-
sibilities to the courts and to their wards, including
following orders of the probate court, protecting the
person and interests of the ward, and fulŽlling their
Žduciary responsibilities.14
Once a guardian has
been appointed, several new duties and responsi-
bilities attach. Sadly, most of these “new” rules
should be common sense and already standard
practice. Instead, the Supreme Court found it nec-
essary to essentially codify these best practices in
order to ensure that guardians are fully meeting
the needs of their wards.
Rule 66.08 sets forth the general responsibilities
of a guardian, which include:
E All guardians are required to obey all orders
of the probate court, including following local
rules and applicable state and federal laws.15
This rule seems to be a natural extension of
the guardian’s existing statutory duty to obey
all orders of the probate court, who is the
superior guardian of wards subject to their
jurisdiction.16
E An applicant seeking appointment as guard-
ian must meet with the proposed ward at least
once prior to the hearing on the appointment
of a guardian.17
E Guardians become mandatory reporters and
must immediately report allegations of abuse,
neglect, or exploitation of the ward to the
probate court, and if applicable to Adult
Protective Services.18
E Guardians are to always look for the least re-
strictive alternative to a full guardianship and
to limit or terminate an existing guardianship
if the ward no longer needs a guardian.19
E The guardian is required to inform the court
when their ward has died.20
E Guardians are required to keep the court ap-
praised of changes to the ward’s residence and
the reason for the change. If the change is to a
more restrictive setting, prior court approval
is needed unless a delay in getting the ap-
proval would adversely aect the health and
safety of the ward.21
E Guardians are required to seek prior court ap-
proval before Žling any lawsuit on behalf of
their ward.22
E Guardians with 10 or more wards must regis-
ter with probate court and provide a fee sched-
ule that outlines both fees for guardianship
services, as well as legal or other direct
services.23
E Guardians are to terminate the guardianship
of an estate if the ward’s principal income is
derived from governmental entities (i.e. Social
Security, VA) when a payee has been ap-
pointed by the governmental entity and no
other signiŽcant assets or income exists.24
E Guardians are required to report both the
payor and the source of any outside fees they
receive for their guardianship services- they
cannot accept compensation or incentives from
direct service providers.25
E Guardians are to avoid conicts of interest
with their ward.26
E When the Guardian’s Inventory is Žled with
the court, the guardian also needs to provide
the court with an itemization and the location
of ‘important papers’ of the ward such as wills,
trusts, powers of attorney, and advanced
directives.27
Rule 66.09 enumerates additional, more speciŽc,
responsibilities that a guardian owes to their ward,
including:
E Guardians are to act professionally and with
integrity.28
E Guardians are to exercise due diligence to

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