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The general powers

R.C. 5808.15(A) provides that a trustee, without authorization by the court, may exercise the powers the terms of the trust confer and, except as the terms limit them, all powers over the trust property that an unmarried competent owner has over individually owned property, any other powers appropriate to achieve the proper investment, management and distribution of the trust property, and any other powers the Ohio Trust Code confers. The exercise of a power is subject to the fiduciary duties of Chapter 5808 (R.C. 5808.15(B)) — good faith, loyalty, impartiality and prudence (R.C. 5808.01 to 5808.04).

The specific powers

Without limiting the general powers, R.C. 5808.16 lists what a trustee may do: collect property and accept or reject additions; acquire or sell property, for cash or on credit, at public or private sale; exchange or partition property; deposit money in a regulated financial-service institution; borrow and mortgage or pledge; continue a business; exercise an owner's rights over securities; build, repair, subdivide and plat real property; lease, including for natural resources; grant and acquire options; insure the property and the trustee; abandon valueless property; address environmental liability; pay or contest and settle claims; pay taxes, compensation and expenses; make tax elections; select payment modes under benefit plans and insurance; make loans, including to a beneficiary; appoint a trustee for property in another jurisdiction; pay a beneficiary under a disability through a guardian, a custodian or a separate fund; distribute in divided or undivided interests; resolve disputes by mediation or arbitration; prosecute or defend actions; sign instruments; wind up on termination; and employ agents, attorneys, accountants, investment advisors and other professionals.

• Sell, exchange, lease, mortgage, insure and improve property — R.C. 5808.16(B) to (K).
• Settle claims, pay expenses and taxes, make elections — R.C. 5808.16(N) to (P).
• Make loans, including to a beneficiary, with a lien on future distributions — R.C. 5808.16(R).
• Pay a beneficiary under a legal disability to a guardian, a custodian or a separate fund — R.C. 5808.16(U).
• Employ agents, attorneys, accountants and investment advisors — R.C. 5808.16(AA).

Discretion, and the standard that governs it

A trustee exercises a discretionary power reasonably, in good faith and in accordance with the terms and purposes of the trust and the interests of the beneficiaries; the greater the settlor's grant of discretion, the broader the range of permissible conduct, and no reasonableness standard applies to the distribution decisions of the trustee of a wholly discretionary trust (R.C. 5808.14(A)). Unless the terms expressly say otherwise, a beneficiary-trustee other than the settlor may distribute for the trustee's own benefit only under an ascertainable standard, and no trustee may distribute to satisfy a support obligation the trustee personally owes; a majority of the other trustees, or a special fiduciary the court appoints, may exercise such a power (R.C. 5808.14(B), (C)). Absent a breach of trust, a trustee is not liable for a loss or for not having made a profit (R.C. 5810.03).

Delegation and cotrustees

A trustee may delegate duties and powers a prudent trustee of comparable skills could properly delegate, exercising reasonable care, skill and caution in selecting the agent, setting the scope and terms and periodically reviewing the agent's actions; a trustee who complies is not liable for the agent's decisions (R.C. 5808.07). Investment and management functions are delegated the same way (R.C. 5809.06). Three or more cotrustees act by majority; a trustee may delegate to a cotrustee; each exercises reasonable care to prevent a cotrustee's serious breach, and a dissenting trustee who joins at the majority's direction after notifying a cotrustee is not liable (R.C. 5807.03).

Powers held by others under the instrument

While a trust is revocable, the trustee may follow a direction of the settlor contrary to the terms (R.C. 5808.08(A)). Where the instrument reserves to the grantor, or vests in an advisory or investment committee or another person, a power to the trustee's exclusion, the excluded fiduciary is not liable for a loss from complying with an authorized direction or from a failure to act where it timely sought but did not obtain the required authorization (R.C. 5815.25(C)); an administrative fiduciary confined to the administrative duties the instrument names has no other duties (R.C. 5815.25(B)). A person other than a beneficiary who holds a power to direct is presumptively a fiduciary who acts in good faith toward the trust's purposes (R.C. 5808.08(D)). Ohio has no directed trust act.

Decanting: distributing to a second trust

Unless the instrument expressly provides otherwise, a trustee with absolute power to distribute principal to one or more current beneficiaries may distribute all or part of the principal, and income not currently required to be distributed, to the trustee of a second trust for the benefit of one or more of those beneficiaries; a trustee with a narrower power may do so only where the second trust does not materially change the beneficiaries' interests (R.C. 5808.18(A), (B)). Neither exercise may reduce a mandatory distribution right, defeat a tax benefit the first trust qualified for, raise the trustee's compensation without the current beneficiaries' consent or the court's approval, or lower the standard of care (R.C. 5808.18(C)). The exercise is by a signed writing filed with the trust's records, with written notice to all current beneficiaries not later than thirty days before the distribution unless all of them waive the period (R.C. 5808.18(D), (F)).

Dealing with banks and title companies: the certification of trust

Instead of the trust instrument, the trustee may furnish a person other than a beneficiary a certification of trust stating that the trust exists and the date its instrument was executed, the identity of the settlor, the identity and address of the currently acting trustee, the powers of the trustee, the trust's revocability and anyone holding a power to revoke, and the authority of cotrustees to sign and whether all or fewer are required (R.C. 5810.13(A)). Any trustee may sign it; it states that the trust has not been revoked, modified or amended in a way that would make it incorrect, need not contain the dispositive terms, and may establish the trustee's identity and any succession (R.C. 5810.13(B) to (E)); the recipient may require the excerpts that designate the trustee and confer the power to act in the pending transaction (R.C. 5810.13(F)). A person who relies on it without knowledge that it is incorrect is protected, and a person dealing with a trustee in good faith need not inquire into the powers (R.C. 5810.13(G); R.C. 5810.12). A trustee conveying real property records a memorandum of trust (R.C. 5301.255).

When a licensed Ohio attorney is the right next call

Whether the instrument limits a power, how a discretionary decision fares under the statute's standard, whether a transaction is conflicted (R.C. 5808.02), whether a decanting is within the section's limits, and what a certification should say for a particular transaction are questions a licensed Ohio attorney of your choosing answers. TrusteeClear prepares the certification from your own answers to the statute's items and reviews nothing.