Ohio Probate Lawyer Blog

It has always been possible for a court to modify a trust for unforeseen circumstances. Traditionally, a court could allow or order a trustee to deviate from a term of the trust if, due to circumstances not known to or anticipated by the trustmaker (settlor), complying with that provision would “defeat or substantially impair the accomplishment of the purposes of the trust…” 

Section 5804.12(A) of the Ohio Trust Code (OTC) gives even broader authority to modify a trust for unforeseen circumstances: “The court may modify the administrative or dispositive terms of a trust or terminate the trust if because of circumstances not anticipated by the settlor modification or termination will further the purposes of the trust.” 

Differences Between Ohio Trust Law and Common Law

Ohio law, which is based on the Uniform Trust Code (UTC), has three important distinctions from the traditional (common law) position. First, under Ohio law, a trust cannot only be modified for unforeseen circumstances, it can be terminated early. Second, Ohio law permits the court to mo… Read More

If you have an estate plan, it should include a durable power of attorney. A durable power of attorney provides you with protection in the event you are incapacitated during your lifetime and cannot manage your own business and financial matters; the word "durable" simply means that the document remains valid even though you are legally incapacitated. If you are incapacitated, a person you have named as your agent can seamlessly take care of your financial responsibilities and decisions. What are the duties of an agent under a power of attorney?

Ohio law provides clear instructions for agents in Ohio Revised Code section 1337.34. The statute divides duties into two categories: duties that an agent has regardless of the provisions in the power of attorney, and duties that an agent has unless the power of attorney provides otherwise.

What an Agent Under an Ohio Power of Attorney Must Do

Notwithstanding provisions in the power of attorney, an agent who has accepted appointment shall do cer… Read More

If you have an IRA, SEP IRA, SIMPLE IRA, or similar retirement plan, you have no doubt been made aware that you must take required minimum distributions (RMD) from the plan when you reach the age of 70 ½. You may withdraw more than the RMD, but withdrawing less carries a heavy tax burden: a 50% tax penalty on any part of the RMD you fail to withdraw. This penalty puts teeth in the "required" part of the phrase.

When you receive your RMD, it will be taxed to you as ordinary income, with the exception of any portion on which you previously paid tax. Because distributions are treated as ordinary income, they may bump you into a higher tax bracket or cause related problems, such as raising the amount of your Social Security benefits that is taxable, or causing your Medicare premiums to go up. If you need the income your RMD would provide, that's one thing. But what if you would prefer to forgo that extra income and the tax headaches it could bring? Is there an alternative to taking an RMD that won't result in penalties?

We tend to make our estate plans based on certain assumptions. Most of the time, we assume our children will outlive us, although we know that that doesn’t always happen. What happens if our assumption on that score proves incorrect? One question many people don’t stop to think—or find too painful to think—is “what happens if my heir dies before me?”

There are laws in place, called “anti-lapse statutes,” that are designed to prevent unintended consequences if that happens. For instance, let’s say you have three children, each of whom has three children of their own. When creating your estate plan, you make a will that divides your estate equally among your three children, “share and share alike.”

At the time you made the will, you probably weren’t anticipating that one of your children might die before you. If you did think of it, you might have assumed that your grandchildren would have inherited the share of your deceased parent.

But in Ohio, until recently, you might have been wrong about that.

Castillo v. Ott

A 2015 Ohio Supreme Court case highlighted a problem with Ohio’s anti-lapse statute. In that case, <… Read More

Think about the things you can do electronically that weren’t possible ten, or in some cases, even five years ago. You can order a pizza from your laptop, cash a check using your phone, monitor someone standing at your front door from miles away. You can sign, scan, and e-mail important documents. Can you, and should you, do your estate planning electronically? Let’s talk about electronic wills and recent updates to Ohio probate law.

The Problem With Electronic Wills

A typical will is printed on paper, and signed by the person making it (the testator) in front of witnesses, who also sign, attesting that the testator, who was known to them, was actually the person who signed the will. There are exceptions to this general rule—under some limited circumstances, a handwritten, unsigned will can be valid, for instance—but for many years, this has been the accepted standard.

This is not just the result of attorneys clinging to outdated ways of doing things. Generally, when the law requires people to “jump through hoops” to accomplish a legal goal, s… Read More

Estate planning attorneys are constantly telling anyone who will listen: “Make your estate plan now; don’t put it off.” Primarily, that is because life is uncertain. Even a young person in good health can be struck down by a sudden illness or accident. If that happens, it is so much easier on everyone involved to have that person’s wishes set forth in a written estate plan. But there are other reasons that we urge people not to put off their estate planning, and one of those is the risk that as they age, they will no longer have the legal capacity to make a binding estate plan. It can be painful to think about, but it’s important to talk about estate planning and diminished capacity.

In order to be legally capable of making a valid will in Ohio, the person making the will (the testator) must be able to:

• Understand the nature of the business in which he or she is engaged;
• Comprehend generally the nature and extent of his or her property;
• Hold in his or her mind the names and… Read More

Increasingly in the past several years, estate planning attorneys have come up against the need to plan for intellectual property when crafting an estate plan. Intellectual property consists of things such as patents, trademarks, copyrights, and trade secrets. The overarching goal of all of these is to allow the owner of the intellectual property (IP) to keep others from producing, using, or selling protected goods and services. Because intellectual property is intangible, estate planning for intellectual property poses some unique challenges.

The various different types of intellectual property are protected by somewhat different means. If you have invented a useful new tool, for instance, the process for protecting it with a patent is different than the process used by your author friend to copyright articles she has written. And if you want your invention, brand, writing, or other creation to continue to benefit your family or other beneficiaries after your death, it is essential to work with an attorney who can successfully plan for the transfer of your intellectual property rights.

Estate Planning and Intellectual Property Issues

When you set out t… Read More

A court challenge to a will or trust is something no one wants, but few people actively try to avoid. If your last will and testament, or your trust, are challenged after your death, it can be devastating on many levels. As you might expect, such a challenge is usually time-consuming and costly. But even more important to many people, will and trust contests can lead to permanent rifts in a family. Even if the financial outcome is what the person making the will or trust intended, the personal fallout may not be able to be repaired. Fortunately, Ohio now offers a new tool to protect  your will and trust from challenges.

In March 2019, testators (creators of wills) and settlors (creators of trusts) will have the opportunity to have their wills and trusts declared valid before their deaths, a process called ante-mortem procedure. This process is not entirely new; Ohio residents have had the ability to have their wills declared valid during their lifetimes for years. However, the prior statute did not include the opportunity to va… Read More