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Wills and Trust Law
University of Dayton School of Law
Sherrets, Carl D.

Final Examà 65 multiple choice, a few T/F.
            —   you can bring any books that you want. No computers though
n You can bring standard calculators
n Helpful problemsà election rights, probate and non-probate material
 
Probate v. Non-Probate
o    Probate = procedure by which a court devises assets. Whether or not you deal with probate is based in how titled.
 
Non-probate
New movement to avoid probate; Means to make assets non-probate so that the procedure of probate can be avoided.
Non-probate assets: take precedence over whatever will says
Contractual beneficiary
life insurance w/named beneficiary
Transfer on death deed — TOD
Variation of Payable on Death specifically for real estate, mutual fund accounts, etc.
Interpreted to only allow for one beneficiary designation
Section 1709
Can even do this with an automobile
2131.13 ORC
Statutory exception in OH that up to 2 vehicles can pass to spouse w/out probate as long as combined value of autos does not exceed $40k.
Beneficiary can be named on a deed for real property
5302.22 ORC
Creates a future interest so can be modified @ any time
Retirement accounts with named beneficiary
Annuity
POD — Payable On Death
Bank accounts which are designated to named person upon holder’s death; provides future interest in account to beneficiary
2131.10
Can be set up by account holder on his/her own.
Applicable to financial institution vehicles (CODs, accounts, etc)
Beneficiaries can be individuals or group of some kind (leave account to all 3 kids).
Joint w/ rights of survivorship
Allows designation to be placed on an asset (almost any kind of asset).
Used b/w spouses most often, but not limited to that relationship
By statute, @ death of one, asset passes to the other (survivor)
This creates a PRESENT interest as opposed to a future interest.
Each has right/access to asset.
Can create liability for one holder if other has problems
Simply b/c deed is in both names does NOT mean it’s a joint w/rights of survivorship. Tenants in common also a possibility and there is no survivorship on there. Key language in deed to look for — look @ grantee’s names and then “for their joint lives remainder to the survivor of them” this catch phrase creates the right to survivorship.
ORC 2105.31 – .39
Trusts
Frequently used to avoid probate
Differs from the things listed above in that it allows deferment of distribution until a later time.
All listed above can happen almost immediately.
A trust allows an estate plan to determine when the assets will be paid out.
Useful for minors; can even postpone it past 18.
Trustee will be appointed to pay bills and take care of other liabilities with the assets prior to the distribution of the assets. In others above, this is not the case; no oversight.
 
 
 
Ex: Older married couple in 70’s. No children. Want to be sure survivor receives all the other has @ death. 
·         Assets: real estate — joint survivorship
§ Mutual fund, checking account — joint survivorship
·         What if wife is successful attorney, but husband stays @ home w/no job. Same result?
§ To protect personal assets from creditors, rather than using joint survivorship deed, these spouses would have deed for real estate in name of the non-professional & possibly have a TOD designation. 
Single parent, 45 yrs old w/ one adult child.
·         Assets: real estate — could look @ joint survivorship, but it could cause liability problems. What about TOD deed? Very common in this situation b/c it creates a future, rather than present interest. Trust option, however, might be the best option especially if child isn’t all that great w/money.
Single parent w/ 5 adult children.
·         Problems arise if children disagree on what to do with asset or they don’t get along. Requires agreement b/w the kids and their spouses (dower interest) to make it smooth.
Single parent w/3 small, minor children.
·         Trust
·         Need to be very careful about creating a present interest in a minor b/c it can create problems (in real estate, if property transfers to minor & needs to be sold, minor can’t contract, etc).
·         HANDOUT – John & Jane Smith’s estate
 
 
BASIC FOUR documents attorneys are exposed to:
Will
Financial POA
Living will
Healthcare POA
 
Will
Will = legal declaration of a person’s intention that he/she wills to have occur after his/her death.
Under OH law, to make a will, you must
Be 18.
Be of sound mind
Attorney has to make determination of this at the time of creation of will.
If not, attorney has to refuse to do it.
And under no restraint
Ex: adult child w/siblings comes in claiming mother whose there wants to do a will naming them sole beneficiary of EVERYTHING.
Person wanting will has to be doing so freely & independently.
Have form that is handwritten or typed
Will must be reduced to writing.
Video or taped recordings would not work.
Have testator sign the document at the end
Have testator sign document in the presence of 2 witnesses.
Have document witnessed by 2 individuals IN the testator’s presence.
Consider including a guardianship clause in the will where there are minor children. Eliminates competing application should both natural guardians die without a guardian being named for the minor.
Name an alternate executor in case first person named cannot serve. If not named, person would have to post a bond to be named that upon application.
Attorneys occasionally keep original in fire proof safe in office. If client takes it, make sure you note where it is. 
If original will cannot be produced, considered intestate.
 
 
 
 
Power of Attorney
Financial power of attorney = allows for another to make financial decisions if other person unable/unwilling to make financial decisions on his/her own.
This can be kept “in escrow” until a time when person asks it to be released or

ad’s will to her. 
 
ISSUE: Does Dobson owe a fiduciary duty to Judy & if so, was it breached?
 
HOLDING: We conclude summary judgment was improperly granted to Dobson on this cause of action. We find evidence to present a jury issue whether Law Firm should be held vicariously liable for Dobson’s conduct since Dobson was acting in his capacity as a lawyer when he met w/Judy to discuss the will in January 1985. Judgment of circuit court reversed in part.
 
RATIONALE: A fiduciary relationship exists when one has a special confidence in another so that the latter, in equity and good conscience, is bound to act in good faith.
 
Court recognized long-standing relationship b/w Dobson, the Firms & Judy. Court said that Dobson didn’t deal w/Judy in good faith when he was actually misrepresenting the terms of the 1st will as those that were actually active in the 2nd will.
 
What could Dobson have done to stay out of trouble? Clearly, he has a duty to Judy. He has an attorney type relationship with not only the elder Mr. Minyard, but also the kids. 
 
Rule 1.6 confidentiality and information
 
Rule 1.7 conflict of Interest: General Rule
 
A lawyer should routinely refuse to represent H & W when both seek estate planning advice. Many represent both, but require H & W to sign engagement letters which deal explicitly w/problem of potential conflict. Generally, interests of H & W coincide.
These letters are common & vary from lawyer to lawyer in specifics, but the general provisions are the same. These are to offer a layer of protection to attorney when representing both W and H in the hopes of avoiding common conflicts. This express agreement backs up the implicit agreement that would exist when H & W seek counsel as a unit.
o    Some legal scholars contend that the family unit often is, and should be, the lawyer’s client even when there are conflicts b/w family members.
 
BARCELO v. ELLIOTT; 923 S.W.2d 575. (1996) CB 35
In May 2006, Supreme Court of Texas joined majority and decided to go with a strict privity rule. In the case, an estate lost $1.5m b/c of attorney’s improper planning. (AL, AK, ME, NE, NY, OH and VA apply strict privity rule). OH’s Zipperstein decision is considered important: Decision was that an attorney may not be held liable of 3rd parties in cases where attorney performs services for a client unless 3rd party is in privity w/client OR unless attorney acts with malice.