» Estate Planning

What Are Digital Assets and Cryptocurrencies in a Will?

Imagine if, at the moment of your death, a large portion of your assets just...vanished. Or that those assets continued to exist, but your loved ones couldn’t find them, access them, or maybe didn’t even know about them. The fruits of your labors, your careful investments, forever locked away from the people you meant to have them.

If that sounds like a nightmare scenario, you should know that it has already happened to some owners of cryptocurrency who died without creating an estate plan for their digital assets. Cryptocurrency is a type of digital asset. The best known type of cryptocurrency is Bitcoin, but there are others, such as LiteCoin and Ripple.

According to the BBC, research estimates that as of early 2020, up to 3.8 million Bitcoin, with a value of about $30 billion, has been lost. Much of the loss is due to owners of the cryptocurrency dying without giving heirs a way to access these digital assets.

How Does Cryptocurrency Work?

Essentially, cryptocurrency is a digital form of currency—digital cash, if you will—that e… Read More

How Much Does it Cost to Make a Will? (And Why a Good Lawyer Won’t Tell You)

One of the first things many people ask when talking to an estate planning attorney is “How much does it cost to make a will?” On its face, it’s a reasonable question: legal services can be expensive, and people naturally want to know what they will be spending. But it’s not the best question to ask when you are looking to create a will or an estate plan, and it’s certainly not the first one you should be asking. And while a good estate planning attorney will let you know what to anticipate as far as the cost of your estate plan, most lawyers worth their salt won’t be able to answer this question—at least, not right off the bat.

In fact, you should be very hesitant to hire an attorney who gives you a firm answer to the question “What do you charge for a will?” It would be kind of like walking into a hospital and asking, “What do you charge for a surgery?” In that case, the answer should certainly vary depending on whether you need a mole removed or a heart-lung transplant. The hospital staff isn’t going to just give you a price. They are going to ask you questions about your health, and run tests to determine your condition. Similarly, in… Read More

The Uniform Electronic Wills Act: The Wave of the Future?

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

What Coronavirus Means For Your Estate Plan

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

Testamentary Capacity in Ohio (Who Has Capacity to Make an Estate Plan?)

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

Estate Planning Before, During, and After Divorce

If your marriage is headed toward divorce, or if you’re in the thick of a divorce right now, estate planning probably isn’t on your mind. If you’ve recently come through a divorce, you may not want to think about estate planning, either; you probably don’t want to see another lawyer for a good, long time. If you’re dealing with divorce, some reluctance to dive into estate planning is understandable. Unfortunately, it may be more important to create or update an estate plan now than ever. Here’s what you need to know about estate planning before, during, and after divorce.

Estate Planning Before Divorce in Ohio

When we speak of estate planning before divorce, we mean before the divorce case is even filed, rather than before it is final. If your spouse files for divorce and blindsides you, you may not have the opportunity to do pre-divorce process estate planning. But if you are planning to file, or suspect your spouse is moving in that direction, there are some estate-planning actions you may want to take.

Wh… Read More

Top Ten Ohio Asset Protection Mistakes in Estate Planning (Is Your Attorney Making Them?)

When you consult an attorney about estate planning, you trust that he or she is going to consider your goals and devise a plan to meet them. In general, most attorneys do. But as the saying goes, “You don’t know what you don’t know,” and it may not occur to you to tell your attorney that you want help with asset protection. Unfortunately, it also doesn’t occur to many attorneys to ask their clients about this critical issue. As a result, attorneys and clients focused on one goal, such as minimizing taxes or business succession planning, might make asset protection mistakes in estate planning. Let’s talk about some of the common mistakes, and how best to avoid them.

First off, let’s define “asset protection.” Asset protection is a type of financial planning intended to protect assets from creditors and keep them available for you or your intended beneficiaries. Some estate planning tools and techniques leave assets vulnerable to the claims of creditors, including divorcing spouses.

Asset Protection Mistake #1: Not Talking About Asset Protection

You may not have known to raise the issue of asset protection with your attorney, but he or sh… Read More

When Can You Modify a Trust for “Unforeseen Circumstances?”

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 modify… Read More

What Happens If My Heir Dies Before Me?

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, Ca… Read More

Electronic Wills and Ohio Probate Law

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, such… Read More

About OhioProbateLawyer.com

Ted Gudorf - Ohio Probate Lawyer

The tasks involved in probating an estate can be daunting, especially for those who have never been through it before. We are committed to relieving anxiety around the probate process and to helping Ohioans through an often-challenging time in their lives.

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