Ohio Probate Lawyer Blog

People end up in court all the time because of a mistake or ambiguity in a document; one party interpreted a phrase as meaning one thing, another interpreted it differently. The court needs to decide which interpretation is correct. Or the document itself may be inconsistent, and it falls to the court to decide what was intended.

The need to interpret (and sometimes reform) a document often happens in the context of a contract dispute. But it also occurs with wills and trusts. How do Ohio courts address these mistakes or ambiguities?

Mistakes and Patent and Latent Ambiguities in Wills

To answer this question, we have to talk about the kinds of mistakes and ambiguities that arise. First, there are what lawyers call “patent ambiguities.” These are ambiguities that are obvious just from reading the document. For example, “I bequeath to my brother Daniel the sum of fifty thousand dollars ($5,000)” is patently ambiguous. Does the person making the will (the testator) mean the amount that is spelled out, or the numerical amount, which is different?

Then there are so-called “latent ambiguities.” These are statements that make sense on their fac… Read More

As this blog post is being written, and possibly as you read it, the United States is in the grip of the coronavirus pandemic. The pandemic has led many people to think about their estate planning in light of COVID-19. The coronavirus also has many of us working and learning remotely, leading to the realization that many things we are used to having take place in person can take place electronically.

It was only a matter of time before someone tried to write a will on an electronic device, and before the validity of that will was questioned in court. In fact, such a case arose in Ohio several years ago. A man named Javier Castro dictated his will to his brother. The brother transcribed the will on an electronic tablet. Javier himself signed the will on the tablet with a stylus; two witnesses signed the tablet, affirming his signature.

In 2013, the Lorain County Probate Court ruled that the will was valid. Ohio wills are required to be in writing, and the court concluded that the electronic writing met that requirement. Ohio wills also must be witn… Read More

Estate planning attorneys have a saying: “It’s never too soon to make an estate plan, but soon, it could be too late.” That’s not just a clever slogan used to generate business, and unfortunately, the emergence of a novel coronavirus has demonstrated the truth of this expression.

The good news is that the great majority of people who contract this virus do recover (even if they must suffer some misery in the meantime). The bad news, which has been splashed across TVs, radios, newspapers, and the internet, is that some people don’t. The greatest death toll has been among the elderly, but no age group is immune.

This isn’t said to frighten you, but to empower you. If you are reading this right now, and your estate plan doesn’t fully address your needs, this is your opportunity to take steps to ensure that it does. We hope that the coronavirus does not have a serious impact on you or your family. But even if it doesn’t, you will benefit from taking these estate planning measures:

Creating a Will or Revocable Living T… Read More

These days, people move around more than ever. You might buy a house in Dayton, get transferred out of state for work, and continue to rent out the Ohio property. Or you might spend most of your life in Ohio, only to spend your later years living with an adult child in a neighboring state. Whatever the reason, there are many people who live outside of Ohio, but continue to own real property in the state. When they die, that real property needs to be disposed of. Ancillary probate in Ohio is one mechanism to deal with real property whose owner died outside of the state.

Ancillary probate is addressed in Chapter 2129 of the Ohio Revised Code. If a resident of another state dies owning property in Ohio, any interested person (usually, but not necessarily, an heir) can apply to be ancillary administrator in any county in Ohio where property of the deceased person (decedent) is located.

As a practical matter, this almost always refers to real property. Personal property such as furniture, art, jewelry, cars, etc. in Ohio will probably be gathered by the personal representative of the estate in the state where the deceased lived, and dealt with in that state's probate co… Read More

In December 2019, the president signed into law the Setting Every Community Up for Retirement Enhancement Act, better known as the SECURE Act. As the name suggests, the law is intended to make it easier for American workers to save for their retirement. Let’s examine what the SECURE Act does, and how it might affect your retirement and estate planning.

End of the “Stretch” Provision

Prior to the SECURE Act, beneficiaries of inherited IRAs and 401(k)s could “stretch” distributions out over their life expectancy. This had a couple of distinct advantages. Because required minimum distributions (RMDs) were stretched out over a longer time period, perhaps decades, that additional income to the beneficiary was less likely to bump them into a higher tax bracket. In addition, of course, beneficiaries could count on a consistent payment amount year after year.

The SECURE Act has done away with the stretch provision, at least for many people. Under the SECURE Act, if the owner of a 401(k) or IRA dies after January 1, 2020, the beneficia… Read More

What does it take, in terms of mental capacity, to be able to make a will in Ohio? To create a trust, make a gift, or to form a limited liability company (LLC) for estate planning purposes? The answer to these questions is at the heart of many challenges to Ohio estate plans.

A will is only valid if the person making it, known as the testator, had "testamentary capacity." But what exactly is testamentary capacity, and when does a test for it apply? Does an individual need greater capacity to make a will than, for instance, to make a lifetime gift?

Unfortunately, Ohio law does not have a statute on the books setting forth the test of capacity for using various estate planning documents and making certain transfers. Attorneys and judges must rely on the common law, and while there is some case law on the capacity to make wills, there is much less regarding the definition of capacity to create a trust, an LLC, a power of attorney (POA), or a gift.

Ohio Law Regarding Testamentary Capacity

The issue of testamentary capacity comes up most fre… Read More

The situation you’re about to read about sounds like a question that might end up on the Ohio bar exam—but don’t let that stop you from reading! The problem really is an interesting one, and more to the point, something that could end up affecting the property of you or someone you love. Even more importantly, we will tell you how to avoid a loss that you might not have ever seen coming.

If you have been reading this blog for awhile, you have heard about transfer on death accounts, which allow an account holder to place a designation on a bank or other financial account so that, when they die, the account automatically passes to the transfer on death (TOD) designee. But TOD designations aren’t only for bank accounts. You can transfer securities, vehicles and even real estate with a TOD designation, which is a beneficiary designation. A significant advantage of a TOD designation is that it allows the asset in question to pass immediately, an… Read More

Any estate planning attorney worth his or her salt will recommend to clients that they execute powers of attorney (POA) for both healthcare issues and finances. Many people tuck these documents in a drawer, feeling secure in the knowledge that they'll be ready to use when needed. With healthcare powers of attorney, that is generally true.

But an unfortunate scenario with financial powers of attorney unfolds often. A person, called the principal, executes a power of attorney allowing another person, her agent, to take certain actions on her behalf should she become incapacitated. When that day arrives, the agent, with POA in hand, goes to the bank or investment firm to transact business on behalf of the principal. Expecting no issues, the agent is shocked to find out that the bank will not honor the POA. Unfortunately, at that point, the principal lacks the legal capacity to execute new POAs that comply with the financial institution's requirements.

W… Read More