council of delegates meeting - ohio state bar association · 2019-01-02 · 5 ohio state bar...

Council of Delegates Meeting

November 7, 2014

1:00 PM

Ohio State Bar Association Headquarters Columbus

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Council of Delegates Meeting

Friday, November 7, 2014

1:00 p.m.

President Martin E. Mohler, presiding

Table of Contents

Council of Delegates Meeting Agenda ............................................................... 3

Council of Delegates Roster ................................................................................ 5

Council of Delegates Bylaws ............................................................................... 15

Resolution from the Board of Governors ........................................................ 17

Report of the Estate Planning, Trust

and Probate Law Section ................................................................................... 19

Report of the Military and Veterans Affairs Committee ............................... 27

Committee Contacts and Presenters ................................................................. 31

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COUNCIL OF DELEGATES MEETING AGENDA

Friday, November 7, 2014

1:00 p.m.

President Martin E. Mohler, presiding

I. Roll Call of the Council, Mary Amos Augsburger

II. Report of the President, Martin E. Mohler

III. Report of the Executive Director, Mary Amos Augsburger

IV. Report of Lee Belardo, President-elect, OSBF - Ohio State Bar Foundation

Fellows Program

V. Committee and Section Reports

A. Resolution from the Board of Governors

B. Report of the Estate Planning, Trust and Probate Law Section

1. A proposal to amend O.R.C. §5163.21(E) by adding a new paragraph

which provides that a residence is considered an exempt resource in

accordance with Federal Medicaid law, even if the residence is owned in

a Revocable Trust.

2. A proposal to amend O.R.C. §2109.301 to clarify that the first partial

accounting of an administrator or executor can be waived.

3. A proposal to amend O.R.C. §2106.19 to allow a watercraft trailer to

pass to a surviving spouse in addition to the associated watercraft.

4. A proposal to create new O.R.C. §§ 1109.081, 1151.93 and 1161.251 to provide access to a decedent’s safe deposit box without a court order solely to remove wills, trust agreements, deeds to burial plots, insurance policies and instructions for the disposition of the decedent’s remains, and also to require a record of such removed documents, and to require delivery of such documents to the decedent’s designated executor or to the probate court.

C. Report of the Military and Veterans Affairs Committee

1. A proposal to adopt a resolution that would encourage the Ohio Supreme

Court to consider the development and implementation of rules

permitting admission without examination for attorneys who are spouses

of service members of the United States Uniformed Services and who

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have graduated from ABA accredited law schools and who are already

admitted to practice in another state or territory.

2. A proposal to amend R.C. 2953.25(C)(1) to require courts reviewing

applications for Certificates of Qualification for Employment to consider

an applicant’s military service and experience as part of the approval

process.

VI. Panel Discussion of the Ohio Constitutional Modernization Commission –

Steven C. Hollon, Judge Patrick F. Fischer, Paula L. Brooks

VII. Adjournment

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Ohio State Bar Association

2014-2015 Council of Delegates

Martin E. Mohler, President

District 1

Counties: Butler, Clermont, Clinton, Hamilton and Warren

Board of Governors Representative:

William H. Kaufman 06/30/17

Brandi M. Stewart 06/30/15

Council of Delegates (22):

Edward P. Brueggeman 06/30/15

Karen Buckley 06/30/15

Terrence M. Donnellon 06/30/15

Tawanda J. Edwards 06/30/15

Richard I. Fleischer 06/30/15

Gregory S. French 06/30/15

Michael L. Gay 06/30/15

Barbara J. Howard 06/30/15

Stephen C. Lane 06/30/15

Jennifer J. Morales 06/30/15

John J. Williams 06/30/15

Kendra L. Daugherty 06/30/16

Stephanie M. Day 06/30/16

Timothy A. Garry, Jr 06/30/16

Roger S. Gates 06/30/16

John C. Kaspar 06/30/16

Doloris F. Learmonth 06/30/16

David H. Lefton 06/30/16

Charles H. Rittgers 06/30/16

Kenneth F. Seibel 06/30/16

James C. Shew 06/30/16

William B. Strubbe 06/30/16

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District 2

Counties: Darke, Miami, Montgomery, Preble and Shelby


Robert L. Gresham 06/30/15


Stephen R. Bruns 06/30/15

Michael P. Brush 06/30/15

Thomas Guillozet 06/30/15

Robert A. McCarthy 06/30/15

Michael W. Sandner 06/30/15

Andrew C. Storar 06/30/15

Danyelle S. Wright 06/30/15

Dalma C. Grandjean 06/30/16

Judge James F. Stevenson 06/30/16

District 3

Counties: Defiance, Fulton, Hancock, Henry, Paulding, Putnam,

Van Wert, Williams and Wood


Alan J. Lehenbauer 06/30/16


John E. Hatcher 06/30/15

Scott T. Coon 06/30/16

Michael A. Shaffer 06/30/16

District 4

Counties: Lucas, Ottawa and Sandusky


Louise A. Jackson 06/30/17

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James D. Caruso 06/30/15

Stuart F. Cubbon 06/30/15

Hon. Kathleen L. Giesler 06/30/15

John F. Hall 06/30/15

Paula S. Hicks-Hudson 06/30/16

Jason A. Hill 06/30/15

Gary A. Kohli 06/30/16

Linde H. Webb 06/30/16

District 5

Counties: Crawford, Delaware, Marion, Morrow, Seneca and Wyandot


Terrie L. Clinger 06/30/17


David A. Hejmanowski 06/30/15

Sean A. Martin 06/30/16

Victor H. Perez 06/30/16

District 6

Counties: Champaign, Clark, Fayette, Greene, Logan, Madison and Union


Randall M. Comer 06/30/16


James F. Peifer 06/30/15

Douglas M. Smith 06/30/15

William C. Hicks 06/30/16

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District 7

Counties: Franklin


Judge Stephen L. McIntosh 06/30/17

Kristin J. Long 06/30/17


Jennifer A. Adair 06/30/15

Thomas J. Bonasera 06/30/15

Katherine S. Chappelear 06/30/15

Stephen E. Chappelear 06/30/15

Donald B. Leach, Jr. 06/30/15

Kristen E. McKinley 06/30/15

Scott R. Mote 06/30/15

Stacy V. Pollock 06/30/15

Tracie N. Ransom 06/30/15

Rene L. Rimelspach 06/30/15

Carl D. Smallwood 06/30/15

Beatrice K. Sowald 06/30/15

E. Jane Taylor 06/30/15

Levi J. Tkach 06/30/15

Charles C. Warner 06/30/15

Thomas W. Weeks 06/30/15

Belinda S. Barnes 06/30/16

Sally W. Bloomfield 06/30/16

Alphonse P. Cincione 06/30/16

Stephanie R. Hanna 06/30/16

H. Ritchey Hollenbaugh 06/30/16

Amy B. Koorn 03/30/16

Helen M. MacMurray 06/30/16

LeeAnn M. Massucci 06/30/16

Alvin E. Mathews 06/30/16

Sandra R. McIntosh 06/30/16

Keith W. Schneider 06/30/16

Heather G. Sowald 06/30/16

Elizabeth J. Watters 06/30/16

Bradley B. Wrightsel 06/30/16

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District 8

Counties: Adams, Brown, Gallia, Highland, Jackson, Lawrence, Pickaway, Pike,

Ross, Scioto and Vinton


Judge Howard H. Harcha 06/30/15


Karyn J. Justice 06/30/15

Frederick C. Fisher 06/30/16

District 9

Counties: Coshocton, Fairfield, Knox, Licking, Muskingum and Perry


J. Kristen Burkett 06/30/16


Linda L. Smith 06/30/15

Judge Dean L. Wilson 06/30/15

William M. Owens 06/30/16

District 10

Counties: Ashland, Erie, Holmes, Lorain, Medina, Richland, Huron and Wayne


Kevin W. Donovan

06/30/17


Joseph E. Cirigliano 06/30/15

Brian D. Kerns 06/30/15

Andrew P. Lycans 06/30/15

Richard R. Mellott, Jr. 06/30/15

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Luke T. Brewer 06/30/16

Gowri V. Hampole 06/30/16

Patricia A. Walker 06/30/16

District 11

Counties: Portage and Summit


Ronald S. Kopp 06/30/15


Cheri B. Cunningham 06/30/15

Stephen A. Fallis 06/30/15

Melissa A. Graham-Hurd 06/30/15

Amanda M. Leffler 06/30/15

Bruce H. Wilson 06/30/15

Frank J. Cimino 03/30/16

William D. Dowling 06/30/16

Montrella S. Jackson 06/30/16

Maura E. Scanlon 06/30/16

District 12

Counties: Cuyahoga


Ronald V. Johnson 06/30/16

Robin G. Weaver 06/30/16


Keith A. Ashmus 06/30/15

Howard R. Besser 06/30/15

Jeffrey A. Brauer 06/30/15

Michael C. Brink 06/30/15

Donald N. Jaffe 06/30/15

Fredric E. Kramer 06/30/15

David A. Kutik 06/30/15

Lisa M. Lane 06/30/15

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Theodore M. Mann, Jr. 06/30/15

William L.S. Ross 06/30/15

Prof. Steven H. Steinglass 06/30/15

Adrienne L. Stemen 06/30/15

David Arnold 06/30/16

Britney A. Bennett 06/30/16

Matthew D. Besser 06/30/16

Darrell A. Clay 06/30/16

Joel D. Eagle 06/30/16

Jacob A. H. Kronenberg 06/30/16

Kelly Summers Lawrence 06/30/16

William J. Price 06/30/16

Adam J. Russ 06/30/16

Donald E. Worthing 06/30/16

Barbara Friedman Yaksic 06/30/16

District 13

Counties: Columbiana and Mahoning


Stephen T. Bolton 06/30/17


Ronald E. Slipski 06/30/15

Don W. Humphrey 06/30/16

J. Michael Thompson 06/30/16

District 14

Counties: Carroll, Stark and Tuscarawas


William W. Emley 06/30/15

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Council of Delegates (5)

Thomas P. Moushey 06/30/15

D. Stephen Stone 06/30/15

Jennifer L. Thomas 06/30/15

Erick L. Bauer 06/30/16

John D. Clark 06/30/16

District 15

Counties: Belmont, Guernsey, Harrison, Jefferson and Monroe


Charles H. Bean 06/30/15

Council of Delegate (1):

C. Keith Plummer 06/30/15

District 16

Counties: Allen, Auglaize, Hardin and Mercer


Stephen L. Smith 06/30/15


Amy B. Ikerd 06/30/15

Judge Jeffrey Reed 06/30/16

District 17

Counties: Athens, Hocking, Meigs, Morgan, Noble and Washington


Thomas H. Gerken 06/30/16


Michael L. Barr 06/30/15

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District 18

Counties: Ashtabula, Geauga, Lake and Trumbull


David J. Sternberg 06/30/16


Stuart W. Cordell 06/30/15

Lora Lynne Krider 06/30/15

Thomas G. Carey, Jr. 06/30/16

Todd C. Hicks 06/30/16

At-Large Delegates

Joseph S. Gallagher 06/30/15

Carol Seubert Marx 06/30/15

Melissa A. Schiffel 06/30/15

Jeffrey T. Heintz 06/30/16

Carmen V. Roberto 06/30/16

John S. Stith 06/30/16

Parliamentarian

Diem N. Kaelber 06/30/15

At-Large Board of Governors Appointees

Brandi M. Stewart 06/30/15

Robin G. Weaver 06/30/16

Kris J. Long 06/30/17

OSBA Elected Officers and Past Officers

Martin E. Mohler 06/30/15

John D. Holschuh, Jr. 06/30/16

Jonathan Hollingsworth 06/30/15

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OHIO STATE BAR ASSOCIATION

BYLAWS OF THE

COUNCIL OF DELEGATES

Section I

In the absence or disability of both the president and president-elect of the Association, the

meetings of this Council shall be presided over by a chairperson pro tempore, elected by a

majority vote of the Council members present, which chairperson, when elected, shall serve

in that capacity only during the sessions of the meeting at which he or she is elected. The

secretary shall convene the first session of any meeting from or at which both the president

and president-elect are absent or unable to preside, and preside during the election of such

chairperson pro tempore.

Section II

No action shall be taken upon reports of committees or sections of the Association unless

they are submitted in writing; and no such committee or section report, which has been

published in the Ohio State Bar Association Report or other publication of the Association

that is distributed to all regular members, as directed by the Board of Governors, prior to the

date of the meeting of the Council, shall be read orally to the meeting unless, by motion

adopted by two-thirds vote of the delegates present, such a reading be ordered.

Section III

No person shall, without the consent of two-thirds of the delegates present, be entitled to

speak more than once or for more than five minutes on any issue before the Council. Reports

presented by committees and sections shall be limited to ten minutes, provided, however, that

the ten-minute restriction shall not apply to the discussion of a proposal subsequent to its

initial presentation. A member of the council or person presenting a report or resolution shall

be entitled to open and close the discussion on the matter under consideration.

Section IV

Voting on all matters shall be by voice vote unless the presiding officer is in doubt

concerning the result, or a division of the house is requested by any member, in either of

which events a standing vote shall be taken.

Section V

The president of the Association shall, with the advice and consent of the Board of

Governors, appoint a parliamentarian to aid and assist him or the chairperson at all meetings

of the Council of Delegates. Said parliamentarian, whose term of office shall be concurrent

with that of the president, shall not be a member of the current Board of Governors or the

Council of Delegates.

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Section VI

The order of business of all meetings of the Council of Delegates shall be the following:

1. Roll call.

2. Action of minutes of previous meetings.

3. Unfinished business from preceding day, if any.

4. Special order of business for the day, as previously prepared by the president,

president-elect and secretary of the Association.

5. New business.

Section VII

Roberts’ Rules of Order shall govern the Council of Delegates in all its proceedings, except

to the extent to which these bylaws are, or the Constitution of the Association is, inconsistent

therewith.

Section VIII

These bylaws may be amended by the majority vote of the delegates present at any meetings,

provided the proposed amendment has been published in the Ohio State Bar Association

Report or other publication of the Association that is distributed to all regular members as

directed by the Board of Governors at least once, not less than one week prior to the date of

the meeting at which action on said amendment is taken.

As amended by the Council of Delegates November 7, 2003

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RESOLUTION FROM THE BOARD OF GOVERNORS 1

2

To the Council of Delegates: 3

4

WHEREAS, the foundation of a free and democratic society rests upon the exchange 5

of ideas through spirited and vigorous debate and discussion; and 6

7

WHEREAS, respect for the Rule of Law serves as the foundation for equal justice 8

under law and adherence to the pursuit of justice; and 9

10

WHEREAS, there is a significant lack of understanding of the basic structure of our 11

governmental institutions and founding documents including the Declaration of 12

Independence and the Constitution; and 13

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WHEREAS, such lack of understanding results in an uninformed and ill-prepared 15

citizenry; and 16

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WHEREAS, providing a meaningful curriculum of civics education is critical to 18

preparing generations of well-informed citizens; and 19

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WHEREAS, there is an undercurrent today in the form of mean-spirited and 21

sometimes uncivil debate on the important issues of the day; and 22

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WHEREAS, such displays of incivility and lack of respect sets a bad example for our 24

citizens about how civil and constructive dialogue should be exercised. 25

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THEREFORE, BE IT RESOLVED that the Ohio State Bar Association urges all 27

segments of our society, in all forums, to encourage and exercise civility in communication 28

and debate and subscribe to the call that just because we disagree does not mean we have to 29

be disagreeable; and 30

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BE IT FURTHER RESOLVED that the Ohio State Bar Association, through its 32

affiliate organizations, including the Ohio Center for Law-Related Education, Ohio State Bar 33

Foundation and Law and Leadership Institute, continue to advocate for and promote civics 34

education programs designed to educate students on the basic principles of a free and 35

democratic society, including the structure and foundation of our governmental institutions, 36

and the Rule of Law; and 37

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BE IT FURTHER RESOLVED that the Ohio State Bar Association continue to 39

engage in public policy advocacy promoting that civics education be part of Ohio’s 40

classroom instruction, including an emphasis on civility and constructive public discourse. 41

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Respectfully submitted, 43

44

Martin E. Mohler 45

President, Ohio State Bar Association 46

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48

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REPORT OF THE ESTATE PLANNING, TRUST AND PROBATE LAW SECTION 49 50 To the Council of Delegates: 51 52 The Estate Planning, Trust and Probate Law (“EPTPL”) Section requests your favorable 53 consideration of the following legislative proposals: 54 55

A. To amend O.R.C. §5163.21(E) by adding a new paragraph which provides that a 56 residence is considered an exempt resource in accordance with Federal Medicaid 57 law, even if the residence is owned in a Revocable Trust. 58 59

B. A proposal to amend O.R.C. §2109.301 to clarify that the first partial accounting of an 60 administrator or executor can be waived. 61 62

C. A proposal to amend O.R.C. §2106.19 to allow a watercraft trailer to pass to a 63 surviving spouse in addition to the associated watercraft. 64 65

D. A proposal to create new O.R.C. §§ 1109.081, 1151.93 and 1161.251 to provide access 66 to a decedent’s safe deposit box without a court order solely to remove wills, trust 67 agreements, deeds to burial plots, insurance policies and instructions for the 68 disposition of the decedent’s remains, and also to require a record of such removed 69 documents, and to require delivery of such documents to the decedent’s designated 70 executor or to the probate court. 71

72 73

Respectfully submitted, 74 75 J. Michael Cooney, Cincinnati 76

Chair, EPTPL Section Council 77 78 PROPOSAL A 79 80 Rationale for the Proposal 81 82 The Ohio Department of Medicaid has taken the position that a residence, which would 83 otherwise be treated as exempt for Medicaid eligibility purposes, is not treated as exempt if 84 the property is owned in a Revocable Trust. The Federal law is clear that a residence owned 85 by an individual who may return to the residence or for a couple where one spouse requires 86 nursing home care, is exempt and shall not be considered for Medicaid eligibility purposes 87 as an available resource. Two Ohio Appellate Courts have considered the issue and have 88 found that the Ohio regulation is clear, and that the agency may treat the residence as a 89 countable asset if it is titled in a Revocable Trust. 90 91 This proposal, which was unanimously approved, provides that the home should be 92 considered as an exempt asset, even if it is titled in a Revocable Trust and that the residence 93 should not be considered for purposes of calculation of a spousal share where one spouse 94

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requires nursing home care. The proposal resolves conflicts between Federal statutory law 95 and State regulation. 96 97 Text of the Proposal 98 99 §5163.21(E)(7) If a trust that meets the requirements of divisions (D)(1) or (E)(1) has an 100 ownership interest in the home (including the land appertaining to the home property), 101 such interest shall be an exempt resource for purposes of determining Medicaid eligibility in 102 accordance with 42 USC 1382b and the value of such interest shall be excluded in the 103 computation of the spousal share as provided in 42 USC 1396r-5. A transfer of such 104 ownership interest from a trust to the individual or to the individual’s spouse shall not be 105 considered an improper transfer or a disposal of assets for less than fair market value for 106 which a period of ineligibility may be imposed pursuant to 42 U.S.C 1396p(c). 107 108 PROPOSAL B 109 110 Revision to O.R.C. §2109.301. 111 112 O.R.C. §2109.301 was amended in 2001 to, among other changes, allow for waiver of partial 113 accounts. (§2109.301(A) paragraph 5). Some courts will not allow a waiver of the first 114 partial accounting since §2109.301(B)(4) provides not later than thirteen months after 115 appointment, every administrator and executor shall render an account (emphasis added). 116 Subsequent partial accountings (but not final accounts) are allowed to be waived. Proposal 117 clarifies that all partial accounts can be waived as long as none of the beneficiaries are under 118 a legal disability. 119 120 Rationale for the Proposal 121 122 The proposed amendment clarifies that all partial accounts can be waived as long as none of 123 the beneficiaries are under a legal disability. 124 125 Text of the Proposal 126 127 §2109.301 Administrator or executor rendering account. 128 129 (A) An administrator or executor shall render an account at any time other than a time 130 otherwise mentioned in this section upon an order of the probate court issued for good cause 131

shown either at its own instance or upon the motion of any person interested in the estate. 132 Except as otherwise provided in division (B)(2) of this section, an administrator or executor 133

shall render a final account within thirty days after completing the administration of the 134 estate or within any other period of time that the court may order. 135

136

Every account shall include an itemized statement of all receipts of the administrator or 137

executor during the accounting period and of all disbursements and distributions made by 138 the executor or administrator during the accounting period. In addition, the account shall 139 include an itemized statement of all funds, assets, and investments of the estate known to or 140

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in the possession of the administrator or executor at the end of the accounting period and 141 shall show any changes in investments since the last previous account. 142 143

Every account shall be upon the signature of the administrator or executor. When two or 144

more administrators or executors render an account, the court may allow the account upon 145 the signature of one of them. The court may examine the administrator or executor under 146 oath concerning the account. 147 148

When an administrator or executor is authorized by law or by the instrument governing 149

distribution to distribute the assets of the estate, in whole or in part, the administrator or 150 executor may do so and include a report of the distribution in the administrator's or 151 executor's succeeding account. 152 153

In estates of decedents in which none of the legatees, devisees, or heirs is under a legal 154

disability, each partial accounting of an executor or administrator may be waived by the 155 written consent of all the legatees, devisees, or heirs filed in lieu of a partial accounting 156 otherwise required. 157 158

(B) (1) Every administrator and executor, within six months after appointment, shall render 159

a final and distributive account of the administrator's or executor's administration of the 160 estate unless one or more of the following circumstances apply: 161 162

(a) An Ohio estate tax return must be filed for the estate. 163

164

(b) A proceeding contesting the validity of the decedent's will pursuant to section 2107.71 of 165 the Revised Code has been commenced. 166 167

(c) The surviving spouse has filed an election to take against the will. 168

169

(d) The administrator or executor is a party in a civil action. 170

171

(e) The estate is insolvent. 172

173

(f) For other reasons set forth by the administrator or executor, subject to court approval, it 174

would be detrimental to the estate and its beneficiaries or heirs to file a final and distributive 175 account. 176 177

(2) In estates of decedents in which the sole legatee, devisee, or heir is also the administrator 178

or executor of the estate, no partial accountings are required. The administrator or executor 179 of an estate of that type shall file a final account or final and distributive account or, in lieu 180 of filing a final account, the administrator or executor may file with the court within thirty 181 days after completing the administration of the estate a certificate of termination of an estate 182 that states all of the following: 183 184

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(a) All debts and claims presented to the estate have been paid in full or settled finally. 185

(b) An estate tax return, if required under the provisions of the Internal Revenue Code or 186

Chapter 5731. of the Revised Code, has been filed, and any estate tax has been paid. 187 188

(c) All attorney's fees have been waived by or paid to counsel of record of the estate, and all 189

executor or administrator fees have been waived or paid. 190 191

(d) The amount of attorney's fees and the amount of administrator or executor fees that have 192

been paid. 193 194

(e) All assets remaining after completion of the activities described in divisions (B)(2)(a) to 195

(d) of this section have been distributed to the sole legatee, devisee, or heir. 196 197

(3) In an estate of the type described in division (B)(2) of this section, a sole legatee, devisee, 198

or heir of a decedent may be liable to creditors for debts of and claims against the estate that 199 are presented after the filing of the certificate of termination described in that division and 200 within the time allowed by section 2117.06 of the Revised Code for presentation of the 201 creditors' claims. 202 203

(4) Not later than thirteen months after appointment, every administrator and executor shall 204

render an account of the administrator's or executor's administration, unless a certificate of 205 termination is filed under division (B)(2) of this section. Except as provided in divisions 206 (B)(1) and (2) of this section, after the initial account is rendered, every administrator and 207 executor shall render further accounts at least once each year. 208 209 (4) Not later than thirteen months after appointment, every administrator and executor shall 210 render an account of the administrator’s or executor’s administration, unless a partial 211 account is waived under division (A) of this section or a certificate of termination is filed 212 under division (B)(2) of this section. After the initial account is rendered or a waiver of a 213 partial account is filed, every administrator and executor shall, at least once each year, 214 render further accounts, or file waivers of partial accounts until the estate is closed, unless a 215 certificate of termination is filed under division (B)(2) of this section. 216 217 PROPOSAL C 218

219

Under current 2106.19, a surviving spouse can elect to take a watercraft outside of 220

probate using the same method as transfer of an automobile. If the watercraft has an 221

outboard motor, the surviving spouse can also take the motor. However, if the 222

watercraft has a trailer that is used to store and/or transport the watercraft, under 223

current law the trailer has to be probated. 224

225 226

227

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Rationale for the Proposal 228

229

The proposed amendment would allow a surviving spouse to take a boat, motor and 230

associated trailer without having to probate any of the items, if the items were not 231

otherwise specifically bequeathed. 232

233 Text of the Proposal 234 235 §2106.19 Transfer of title to watercraft or outboard motor. 236 237 (A) Upon the death of a married resident who owned at least one watercraft, ONE 238 WATERCRAFT TRAILER, one outboard motor, or one of each at the time of death, the 239 interest of the deceased spouse in one watercraft, ONE WATERCRAFT TRAILER, one 240 outboard motor, or one of each that is not otherwise specifically disposed of by 241 testamentary disposition and that is selected by the surviving spouse immediately shall pass 242 to the surviving spouse upon receipt by the clerk of the court of common pleas, OR IN THE 243 CASE OF AN UNTITLED BUT REGISTERED WATERCRAFT TRAILER, UPON RECEIPT 244 BY THE BUREAU OF MOTOR VEHICLES, of both the following: 245 246

(1) The title executed by the surviving spouse, IF TITLED; AND 247 248

(2) An affidavit sworn by the surviving spouse stating the date of the decedent’s 249 death, a description of the watercraft, THE WATERCRAFT TRAILER, OR outboard motor, 250

or both, its or their approximate value, and that the watercraft, THE WATERCRAFT 251

TRAILER, OR outboard motor, or both are not disposed of by testamentary disposition. 252

253 The watercraft, THE WATERCRAFT TRAILER, OR outboard motor, or both shall not be 254 considered an estate asset and shall not be included and stated in the estate inventory. 255 256 Transfer of a decedent’s interest under this division does not affect the existence of any lien 257 against a watercraft, A WATERCRAFT TRAILER, or outboard motor so transferred. 258 259 (B) Except for a watercraft, A WATERCRAFT TRAILER, OR outboard motor, or both 260 transferred as provided in division (A) of this section, the executor or administrator may 261 transfer title to a watercraft, A WATERCRAFT TRAILER or outboard motor in the manner 262 provided for transfer of an automobile under divisions (B) and (C) of section 2106.18 of the 263 Revised Code. 264 265 (C) THE TERM WATERCRAFT TRAILER SHALL ONLY REFER TO A TRAILER USED 266 TO TRANSPORT THE WATERCRAFT SUBJECT TO TRANSFER UNDER THIS SECTION. 267 268

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PROPOSAL D 269 270 Rationale for the Proposal 271 272 A decedent’s safe deposit box currently may be accessed to obtain a will or other documents 273 only with a court order per O.R.C. § 1109.10 or by an executor appointed by the probate 274 court. Wills are often held in safe deposit boxes which prevents appointment of a 275 decedent’s executor absent access to the decedent’s safe deposit box. Additionally, life 276 insurance policies which can provide ready cash for burials and other post-death expenses 277 are not readily accessible after a death when held in a safe deposit box. Although O.R.C. § 278 5731.39 (permitting release of wills, deeds to burial lots and insurance policies from a safe 279 deposit box under bank supervision with a record of the removed documents) has not been 280 repealed, it was amended to provide that the section is no longer applicable to decedents 281 dying on or after January 1, 2013. Thus, there is no longer statutory authority to access a 282 decedent’s safe deposit box without a court order. 283 284 This proposal, which was passed by our Section, provides that a person possessing a 285 decedent’s safe deposit box key may access the safe deposit box upon proof of the death, 286 proof of the key holder’s identity, and under bank supervision in order to remove all wills, 287 trust agreements, deeds to burial plots, insurance policies and instructions for the 288 disposition of the decedent’s remains. The proposal applies to banks (§ 1109.081), building 289 and loan associations (§ 1151.93), and savings banks (§ 1161.251). 290 291 Text of the Proposal 292 293

§1109.081 Access to Decedent’s Safe Deposit Box 294

295

(A) This section applies only to a safe deposit box in a bank held by the decedent in the 296

decedent’s sole name, or held by the decedent and others all of whom are deceased. 297

Nothing in this section affects the rights of a surviving coholder. 298

299

(B) A person who has a key to the safe deposit box may, before letters of appointment 300

have been issued by the probate court, obtain access to the safe deposit box only for the 301

purposes specified in this section by providing the bank with both of the following: 302

303

(1) Proof of the decedent’s death. Proof shall be provided by a certified copy of 304

the decedent’s death certificate or by a written statement of death from the funeral director, 305

coroner, treating physician, or hospital or institution where the decedent died. 306

307

(2) Reasonable proof of the identity of the person seeking access. Reasonable 308

proof of identity is provided for the purpose of this subsection if the person provides the 309

bank with an identification card or driver’s license, issued by the United States or any state, 310

that is current or was issued during the preceding five years. 311

312

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(C) The bank has no duty to inquire into the truth of any statement, declaration, 313

certificate, affidavit, or document offered as proof of the decedent’s death or proof of 314

identity of the person seeking access. 315

316

(D) When the person seeking access has satisfied the requirements of subsection (B), the 317

bank shall do all of the following: 318

319

(1) Keep a record of the identity of the person. 320

321

(2) Permit the person to open the safe deposit box under the supervision of an 322

officer or employee of the bank, and to make an inventory of its contents. 323

324

(3) Permit the person to remove all wills, trust agreements, deeds to burial plots, 325

insurance policies and instructions for the disposition of the decedent’s remains and the 326

bank shall make a photocopy of all such documents which are removed from the safe 327

deposit box, and keep the photocopy in the safe deposit box until the contents of the box are 328

removed by the executor or administrator of the estate or other legally authorized person. 329

The bank may charge the person given access a reasonable fee for photocopying. 330

331

(E) If the person given access is not the executor named in the will, the person shall 332

deliver all documents which are removed from the safe deposit box to the person named in 333

the will as executor. If the person given access is unable to deliver the documents to the 334

named executor for any reason, then the person shall deposit the will with the probate court 335

in the county in which the decedent resided pursuant to Section 2107.07. 336

337

(F) Except as provided in division (D), the person given access shall not remove any of 338

the contents of the decedent’s safe deposit box. 339

340

(G) Nothing in this section shall limit the right of a probate court to grant access to a 341

decedent’s safe deposit box pursuant to Section 1109.10 or otherwise. 342

343

NEW SECTION 1151.93 344

345

1151.93 Access to a safe deposit box of a building and loan association shall be in 346

accordance with Section 1109.081 of the Revised Code. 347

348

NEW SECTION 1161.251 349

350

1161.251 Access to a safe deposit box of a savings bank shall be in accordance with Section 351

1109.081 of the Revised Code. 352

353

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27

REPORT OF THE MILITARY AND VETERANS AFFAIRS COMMITTEE 354

355 To the Council of Delegates: 356 357

The Military and Veterans Affairs Committee is submitting the following proposals and is 358 requesting favorable consideration of them: 359 360

A. A proposal is a request for the OSBA Council of Delegates to adopt a resolution 361 that would encourage the Ohio Supreme Court to consider the development and 362

implementation of rules permitting admission without examination for attorneys 363 who are spouses of service members of the United States Uniformed Services 364 and who have graduated from ABA accredited law schools and who are already 365 admitted to practice in another state or territory. 366

367 B. A proposal is a legislative request to amend R.C. 2953.25(C)(1) to require 368

courts reviewing applications for Certificates of Qualification for Employment 369 to consider an applicant’s military service and experience as part of the approval 370

process. 371 372

373

Respectfully submitted, 374 375

Linda Strite Murnane, Columbus 376 377 Frederick Stratmann, Columbus 378

Co-Chairs 379

380 381

PROPOSAL A: RESOLUTION TO SUPPORT MILITARY SPOUSE J.D. 382 LICENSURE 383 384

Summary and Rationale 385 386 The OSBA Military and Veterans Affairs Committee asks the OSBA Council of Delegates to 387 adopt a resolution and work for changes to Rule 9 of the Rules for the Government of the Bar 388 of Ohio to permit the admission by waiver of military spouses who are required to move to 389 Ohio as a result of their spouse’s military service. 390

391

The resolution would encourage the Ohio Supreme Court to develop and implement rules 392 permitting admission without examination for attorneys who: are spouses of service members 393

of the United States Uniformed Services; have graduated from ABA accredited law schools; 394 are already admitted to practice in another state or territory. In February, 2012, the American 395 Bar Association’s Council of Delegates adopted a similar resolution. In July, 2012, the 396 Conference of Chief Justices also adopted a resolution in favor of military spouse licensing. 397 Since then eleven states have adopted such rules. 398

399

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By virtue of their service military families tend to move every two to three years. Sometimes 400

those moves involve overseas tours. These moves are based on the manpower needs of the 401 U.S. government, and are mandatory for the service-member. Although the spouse and 402 children may technically refuse to move, this causes obvious hardships on families already 403

often separated by deployments. Military spouses who are attorneys are required to be 404 licensed in each state where they practice. Licensing can take up to a year, sometimes more, 405 for the application, character and fitness review, bar examination, and processing. Licensing 406 can cost $4,000 to $5,000 each time for preparation materials and fees. All gaps in 407 employment must be justified on bar applications and can cause delays in admission. 408

409 According to the Military Spouse JD Network, it is not unusual for our members to have 410 taken 3 or 4 different bar examinations. Less than 33% of MSJDN members have full-time 411 legal employment. Approximately half are either: unemployed and actively looking for work, 412

under-employed in non-attorney positions as paralegals/secretaries, or can only find part-time 413 work. For all military families the biggest challenge to finding and keeping employment is 414

frequent moves and lack of portable employment opportunities. Recognizing this issue and 415 the sacrifices made by military families, eleven states have already adopted rules that will 416

provide for the licensing of military spouses if certain conditions are met. This committee 417 urges the Council of Delegates to support a resolution encouraging the Ohio Supreme Court 418 to follow suit. 419

420

Text of the Resolution 421 422 RESOLUTION 423 424

RESOLVED, That the Ohio State Bar Association urges the Ohio Supreme Court to 425

adopt rules, regulations, and procedures that accommodate the unique needs of military 426 spouse attorneys who move frequently in support of the nation’s defense, including but not 427 limited to: 428

429 a. Enact “admission by endorsement” for military spouse attorneys, whereby a 430

military spouse attorney holding an active license to practice law in at least one 431 state, territory or the District of Columbia, in good standing in all jurisdictions 432

where admitted, and who possesses the requisite character and fitness and meets 433 the educational standards required for admission would be admitted without 434 examination to the practice of law in another jurisdiction, while the applicant: 435

436 i. Demonstrates presence in that jurisdiction due to a spouse’s military 437

service; 438 ii. Establishes that he or she is not currently subject to a lawyer discipline or 439

the subject of a pending disciplinary matter in any jurisdiction; 440 iii. Pays any applicable annual client protection fund assessment; and 441 iv. Complies with all other ethical, legal and continuing legal education 442

obligations; 443 444

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b. Review current bar application and admission procedures to ensure that they are 445

not unduly burdensome to military spouse attorneys and that those applications 446 are handled promptly; 447

448

c. Encourage mentorship programs to connect military spouse attorneys with local 449 members of the bar; and 450

451 d. Offer reduced bar application and membership fees to military spouse attorneys 452

who are new to the jurisdiction or who no longer reside in the jurisdiction but 453

wish to retain bar membership. 454 455

PROPOSAL B: AMEND R.C. 2953.25 TO REQUIRE CONSIDERATION OF 456 MILITARY TRAINING AND EXPERIENCE 457 458

Summary and Rationale 459 460 In September, 2012, the State of Ohio created a Certificate of Qualification for Employment. 461

The CQE will allow persons who have a previous felony or misdemeanor conviction to apply 462 to the court to lift the collateral sanction that bars them from being considered for 463 employment. The law requires the court to consider factors including the individual's 464

criminal history, filings submitted by the prosecutor or by the victim in accordance and all 465 other relevant evidence. 466

467 If a certificate is issued, the veteran could then present it to the appropriate state licensing 468 agency that will decide, on a case-by-case basis whether to issue or re-issue a license and/or 469

permit an employment opportunity within the desired occupation. A company or person who 470

hires someone granted a certificate is given immunity from negligent hiring claims when the 471 employer is aware of the certificate at hiring. If the employer fails to take action when 472 dangerous or criminal behavior is exhibited after hiring and retains the employee after such 473

behavior, the employer can then be held liable. Certificates may be revoked if the holder is 474 convicted of or pleads guilty to a felony offense committed after the certificate is issued. 475

476 This committee endorses amending the law to require reviewing courts to also consider the 477

applicant’s military service and experience when determining whether to approve the CQE 478 application. In 2012, Ohio adopted changes to R.C. 2929.12 and 2929.22 to require courts to 479 consider military training and experience during criminal sentencing. Thus, if a court is 480 required to consider factors such as post-traumatic stress disorder, service-connected 481 disabilities and military sexual trauma as mitigating factors during sentencing, it should also 482

be required to consider them as factors for the lifting of collateral sanctions. 483 484

Text of the Proposal 485 486 Section 2953.25 (C)(1) of the Revised Code is hereby amended to read: 487 488 Upon receiving a petition for a certificate of qualification for employment filed by an 489 individual under division (B)(2) of this section or being forwarded a petition for such a 490

30

certificate under division (B)(5)(a) of this section, the court shall review the individual's 491

petition, the individual's criminal history, all filings submitted by the prosecutor or by the 492 victim in accordance with rules adopted by the division of parole and community services, 493 the applicant’s military service record and whether the applicant has an emotional, mental, or 494

physical condition that is traceable to the applicant’s service in the armed forces of the 495 United States and that was a contributing factor in the commission of the offense or offenses. 496 and all other relevant evidence. The court may order any report, investigation, or disclosure 497 by the individual that the court believes is necessary for the court to reach a decision on 498 whether to approve the individual's petition for a certificate of qualification for employment. 499

500

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COMMITTEE CONTACTS AND PRESENTERS

Board of Governors Martin E. Mohler, Esq.

Shindler Neff Holmes Worline & Mohler LLP

300 Madison Avenue, Suite 1200

Toledo, OH 43604-1556

Phone: (419) 243-6281

E-mail: [email protected]

Jonathan Hollingsworth , Esq.

J. Hollingsworth & Associates LLC

137 N. Main Street, Suite 1002

Dayton, OH 45402-1846

Phone: (937) 424-8556

E-mail: [email protected]

Estate Planning, Trust and Probate Law Section J. Michael Cooney, Esq. Dinsmore & Shohl LLP

255 E. 5th St., Suite 1900

Cincinnati, OH 45202

Phone: (513) 977-8236

Email: [email protected] John F. Furniss, Esq. Bricker & Eckler LLP 100 S. Third Street Columbus, OH 43215 Phone: (614) 227-8919 Email: [email protected] Military and Veterans Affairs Committee Frederick W. Stratmann, Esq.

Ohio Department of Veterans Services

77 S. High Street, 17th

Floor

Columbus, OH 43215

Phone: (614) 728-2142

Email: [email protected]

mailto:[email protected]





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