Ohio Code 5816.06 – Qualified affidavits and related rules
(A) Except as otherwise provided in this section, a transferor shall sign a qualified affidavit before or substantially contemporaneously with making a qualified disposition.
Terms Used In Ohio Code 5816.06
- Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
- Another: when used to designate the owner of property which is the subject of an offense, includes not only natural persons but also every other owner of property. See Ohio Code 1.02
- Attachment: A procedure by which a person's property is seized to pay judgments levied by the court.
- Bankruptcy: Refers to statutes and judicial proceedings involving persons or businesses that cannot pay their debts and seek the assistance of the court in getting a fresh start. Under the protection of the bankruptcy court, debtors may discharge their debts, perhaps by paying a portion of each debt. Bankruptcy judges preside over these proceedings.
- Beneficiary: A person who is entitled to receive the benefits or proceeds of a will, trust, insurance policy, retirement plan, annuity, or other contract. Source: OCC
- Creditor: means a person who has a claim against a transferor and any transferee or assignee of, or successor to, that claim. See Ohio Code 5816.02
- Disposition: includes the exercise of a general power so as to cause a transfer of property to a trustee or trustees but does not include any of the following:
(1) The release or relinquishment of an interest in property that, until the release or relinquishment, was the subject of a qualified disposition;
(2) The exercise of a limited power so as to cause a transfer of property to a trustee or trustees;
(3) A disclaimer of an interest in a trust, bequest, devise, or inheritance. See Ohio Code 5816.02
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Legacy: A gift of property made by will.
- Legacy trust: means a trust evidenced by a written trust instrument to which all of the following apply:
(a) The trust has, names, or appoints at least one qualified trustee for or in connection with the property that is the subject of a qualified disposition. See Ohio Code 5816.02
- Oath: includes affirmation, and "swear" includes affirm. See Ohio Code 1.59
- Oath: A promise to tell the truth.
- Person: includes an individual, corporation, business trust, estate, trust, partnership, and association. See Ohio Code 1.59
- Property: means real and personal property. See Ohio Code 1.59
- Qualified affidavit: means an affidavit that meets the requirements of section 5816. See Ohio Code 5816.02
- Qualified disposition: means a disposition by or from a transferor to any trustee of a trust that is, was, or becomes a legacy trust. See Ohio Code 5816.02
- Transferor: means a person who directly or indirectly makes a disposition. See Ohio Code 5816.02
(B) A qualified affidavit shall be notarized and shall contain all of the following statements under oath:
(1) The property being transferred to the trust was not derived from unlawful activities.
(2) The transferor has full right, title, and authority to transfer the property to the legacy trust.
(3) The transferor will not be rendered insolvent immediately after the transfer of the property to the legacy trust.
(4) The transferor does not intend to defraud any creditor by transferring the property to the legacy trust.
(5) There are no pending or threatened court actions against the transferor, except for any court action identified by the affidavit or an attachment to the affidavit.
(6) The transferor is not involved in any administrative proceeding, except for any proceeding identified by the affidavit or an attachment to the affidavit.
(7) The transferor does not contemplate at the time of the transfer the filing for relief under the Bankruptcy Code.
(C) A qualified affidavit is considered defective if it materially fails to meet the requirements set forth in division (B) of this section, but a qualified affidavit is not considered defective due to any one or more of the following:
(1) Any nonsubstantive variances from the language set forth in division (B) of this section;
(2) Any statements or representations in addition to those set forth in division (B) of this section if the statements or representations do not materially contradict the statements or representations required by that division;
(3) Any technical errors in the form, substance, or method of administering an oath if those errors were not the fault of the affiant, and the affiant reasonably relied upon another person to prepare or administer the oath.
(D)(1) A qualified affidavit is not required from a transferor who is not a beneficiary of the legacy trust that receives the disposition.
(2) A subsequent qualified affidavit is not required in connection with any qualified disposition made after the execution of an earlier qualified affidavit if that disposition is a part of, is required by, or is the direct result of, a prior qualified disposition that was made in connection with that earlier qualified affidavit.
(E) If a qualified affidavit is required by this section and a transferor fails to timely sign a qualified affidavit or signs a defective qualified affidavit, then, subject to the normal rules of evidence, that failure or defect may be considered as evidence in any proceeding commenced pursuant to section 5816.07 of the Revised Code, but the legacy trust or the validity of any attempted qualified disposition shall not be affected in any other way due to that failure or defect.
Last updated May 20, 2021 at 2:23 PM