Ohio HB 595: What's New in Ohio Probate Law
A new omnibus bill, HB 595, has made some changes to Ohio probate law that could affect your will or trust. The law is far-reaching, and contains much more information than we can address in a single blog post, but there are some developments in Ohio probate law that could have an impact on you or your loved ones. Here are some of the important developments from Ohio HB 595.
Incorporating a Trust into a Will
Prior to the effective date of HB 595, an existing document could be incorporated into a will "by reference." This means that simply by referring to a document, book, memorandum, or record in a will, the document could become part of the will. The actual document had to be deposited in the probate court at the time the will referring to it was probated, within 30 days afterward, or later if the court granted an extension of time for good cause.
HB 595 provides that if a will incorporates a trust instrument only under the circumstances that a bequest to a trust is ineffective, the trust instrument needs to be deposited in the probate court within 30 days of a final determination that the bequest was ineffective.
In addition, HB 595 that if it is the intent of the person making a will (known as the "testator") to incorporate a trust instrument into his or her will, the will must make that intention clear with specific language, not a mere reference. The will needs to use words such as "incorporate" or "made a part of," or similar terms manifesting the testator's clear intent to incorporate the trust instrument into the will. Language in the will that simply identifies the existence of a trust is no longer sufficient to show the clear intent to incorporate that trust instrument into the will by reference.
An important note: the language in HB 595 applies to the wills of testators who die on or after the bill's effective date. That means if you executed your will prior to HB 595, but die afterward, the language in your will may not have the effect you were led to expect when you created it. Consider speaking with an experienced estate planning attorney to make sure your will does what you intend it to.
Ohio HB 595 and Contesting the Validity of a Trust
HB 595 changes the law dealing with some actions regarding a revocable trust made irrevocable by the death of the creator (settlor) of the trust. These actions involved:
- Contesting the validity of the trust;
- Contesting the validity of an amendment to the trust made during the settlor's lifetime;
- Contesting a revocation of the trust during the settlor's lifetime; or
- Contesting the validity of a transfer made to the trust during the settlor's lifetime.
Someone choosing to bring a case regarding one of these issues had to do so within the EARLIER of:
- The date that is two years after the settlor's death, OR
- The date that is six months from the date on which the trustee sent the person filing the action a copy of the trust instrument and notice of the trust's existence, along with the trustee's name and address and time allowed for beginning an action.
HB 595 establishes that no person may contest the validity of a trust as to facts already decided, if the settlor submitted the trust to probate court during his or her lifetime, and the court declared the trust valid under Ohio law. However, a person may still contest the validity of the trust as to those particular facts, if the person should have been named as a defendant to the action to declare validity and was not, or was not properly served.
What does this mean for you? If you are the settlor of a trust, it means you have more tools available to ensure that a trust you create will not be successfully challenged. If you are an heir or beneficiary of the settlor of a trust, it means you may have a much harder time challenging the validity of a trust, or of an amendment to, revocation of, or transfer to that trust.
Determining the Validity of a Will
Ohio HB 595 also allows the creator of a will (testator) to file a complaint with a probate court to determine the validity of the will (subject only to a later revocation or modification) before the testator's death. Note that only the testator can file such a complaint regarding his or her will, not a guardian or agent under a power of attorney.
A testator seeking a determination whether his or her will is valid must file a complaint in the probate court to determine whether the will, and any related trust, are valid. The testator must file along with the complaint a written waiver of his or her physician-patient privilege in order to aid in a finding of validity.
Filing a complaint can protect the will against later charges that it was not valid. However, the law specifically states that failing to file a complaint to determine the validity of a will before the testator's death must not be interpreted as evidence that the will is invalid.
These are a few of the highlights of Ohio HB 595. If you have questions about the changes in Ohio probate law, or simply want to see if your estate plan will have the outcome you intend, consider a consultation with an experienced Ohio probate attorney.
You may also be interested in:
- Five Things You May Not Know About Your Revocable Trust
- Revoking or Amending a Living Trust: What You Should Know
- Can a Trust Be Changed After its Creator Has Died?