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

Wills and Trusts Outline
Sherrets- Wills and Trusts
 
 
 
I.            Introduction:      SEE Jan 6 Problem for Probate v. Non-Probate
A.    Avoiding Probate (options)
                                                  i.          Contract Option
1.      Contract names a B (ie, life insurance, retirement accounts)
2.      name a trust as a B (pour over will?
                                                 ii.          Gifts
                                               iii.          POD   (Checking, CDs, Savings)
1.      gives someone a future interest in an account – § 2131.10
2.      any person, entity, or organization – even multiple
                                               iv.          TOD (Securities, stocks, bonds, mutual funds)
1.      transfers title on death to named B – § 1709 (847)
2.      future interest only; no present rights
3.      limited to 1 B: individual or organization
4.      used mainly for stocks, bonds, RE, mutual funds, etc…
5.      TODA (Auto) §2131.13
6.      TODD (Deeds) §5302.22
                                                v.          JTROS
1.      any asset except retirement account
2.      contrast to POD/TOD
a.       ***JT has immediate ownership. P/TOD only has future interest
3.      Sole possession upon death
4.      § 2105.31-39 (103)
a.       120 hours survival req’d otherwise predecease
5.      creation:
a.       “for their joint lives, remainder to the survivor” will be on deed
b.      otherwise it’s a tenancy in common
                                               vi.          Living Trust- (Trust- right of property held by one party for the benefit of another)
1.      Sometimes used to minimize estate taxes(46%)
2.      Cover situations with minor children or time of distribution
B.    Slasher law – §2105.19 (97)
                                                  i.          Property will pass as though slayer had predeceased T
                                                 ii.          Anyone convicted of or pleads guilty to, or found not guilty by reasons of insanity to murder or voluntary manslaughter, shall in no way benefit by the death of the person they killed.
1.      Gross negligence is not enough. P24 #5. 
                                               iii.          no person will benefit from death from slaying even if insane for:
1.      aggravated murder §2903.01
2.      murder §2903.02
3.      voluntary manslaughter §2903.03
                                               iv.          Mercy killing:
1.      No inheritance – most jdx see this as a murder
                                                v.          2105.19(c)
1.      those not guilty by insanity can file complaint w/in 60 days after adjudication of competence to declare right to benefit from death and may be able to recover unless state can show by preponderance that they would have committed the crime anyway or weren’t insane at time of crime.
C.    Conditions on inheritance:
Shapira p.1    Remember—Courts are trying to effectuate the intent of the testator! 
 
1.      you have 7 yrs to marry a jewish girl or no dough
a.       This was OK as long as it’s not a total restraint on marriage and there were plenty of jews around in this case
2.      Rule:
a.       donor has freedom as long as donative transfer doesn’t interefere with:
                                                                                                                  i.     spousal rights
                                                                                                                ii.     creditor rights
                                                                                                              iii.     unreasonable restraints on alienation or marriage
1.      ie, case where bro put a provision that other bro gets no $ if he’s still married to girl X. This was OK b/c the married bro didn’t know of the provision so it didn’t foster a divorce.
                                                                                                              iv.     provide for preparation for divorce
                                                                                                                v.     impermissible racial restrictions
                                                                                                              vi.     provisions encouraging illegal activity
                                                                                                            vii.     rules against perpetuities
3.      HYPO: What if clause said he would get it if he divorced his catholic wife? This would restrict his freedom and against public policy. Court would say not proper restriction. 
4.      HYPO: Brother gets half provided he is unmarried at the time of death.   Court says this is fine, as long as brother did not know about the condition. If brother knew about it, it would be advocating divorce.
Fiduciary Duty of Attorney   p29
D.    1.6 – confidentiality (p33-34)
                                                  i.          L can’t reveal client’s info unless client consents except for disclosures that are impliedly authorized except as stated in (b)
                                                 ii.          (b) authorizes disclosure to prevent client from committing a criminal act likely to cause death or serious harm
E.    1.7 – conflict of interest
                                                  i.          lawyer can’t rep client if the rep is directly adverse to another client, unless:
1.      lawyer truly believes there won’t be adverse affects
2.      each client consent after consultation (consent must be in writing in OH)
F.     1.8(c) –
                                                  i.          lawyer can’t solicit a testamentary or other gift from a client, unless related (Sherrets can’t write a will for his friend who wants to leave him a table)
G.    Fiduciary Duty exists when:
                                                  i.          one has special confidence in another, so that the latter in equity and good conscious is bound to act in good faith
H.   If there is a conflict of interest (rep’ing 2 conflicting clients)
                                                  i.          Holtz p.30
1.      though L had no duty to disclose 2nd will, he owed D the duty to deal in good faith and not actively misrepresent the 1st will.
                                                 ii.          P 4 p.33: ask T to disclose himself; (b) inform but don’t mislead; (c) also a conflict of interest
                                               iii.          P 2 P.35: Can disclose child to W b/c statement was by a 3rd party and not protected by A/C privilege
I.      OH law requires separate representation for nuptials
J.      Privity Barrier
                                                  i.          OH has strict privity. no duty is owed by L to B’s and 3rd parties don’t have right to pursue without privity or atty malice (Zipperstein)
1.      but executor’s can? under what circumstances? implications?
 
P33
#1: Father had no obligation to tell daughter what was in will. And he could rewrite will at any time provided he was competent. And he could restore her interest if she dropped the suit.   Lawyer could be liable by misrepresentation and misleading her.
#2:   Drafting will was not breach of duty to daughter and was not breach of professional responsibilities. No conflict of interest.
#3: He had no prior relationship in that case, so no breach of fiduciary duty. He would have had no relationship with her. But not a good idea to mislead.
#4: He should have explained that he can not talk about it without the consent of the father. 
 
P. 34
#1   Divided opinion between not telling and need to disclose to husband. There is a consent to joint representation.   
1.      You can do nothing. 
2.      Encourage communication between the spouses
3.      You can withdraw representation
 
#2 Majority court upheld the waiver.   Minority says Lawyer must do more and reveal there is a conflict of interest.   Another option would be to have a court reporter there or videotape. 
 
 
Estate Planning Documents
                        Basic Four: 
Will- even if everything is non-probate, y

          iii.          makes reference to “heirs” of a person
B.    Ohio IS statute:
                                                  i.          The Statute of Descent and Distribution
C.    Fundamentalsof IS:
                                                  i.          Spouse (OH)
1.      if there is a surviving spouse, they get it all § 2105.06 (74)
a.       spouse isn’t an heir but has dower/curtsey rights – a Lifetime interest in T’s real property
                                                 ii.          Descendants
1.      take to exclusion of collaterals (table on p. 69)
2.      direct lineal heirs
3.      Issue – kids, gkids, ggkids, etc…
                                               iii.          Collaterals
1.      2 factors if both parents of decedent are dead:
a.       who is common ancestor of T
b.      who is the collateral relative?
                                               iv.          Standing to Challenge
D.    Personal Representative
                                                  i.          oral divorce settlements are not binding on a judge
1.      means that the W would be the rep of the estate
                                                 ii.          if a PR has not been named
1.      T’s surviving spouse has priority for appointment
E.    Descent and Distribution § 2105.06 (74)
a.       if no spouse, to kids of T or their descendants, per stirpes
b.      All to spouse as long as kids/descendants are from that same marriage
c.       Spouse and 1 child not from spouse, then $20k + ½ to spouse and rest to child or its descendants per stirpes
d.      Spouse and more than 1 child:
                                                                                                                  i.     if spouse is parent (adoptive or not) of one, but not all w/decedent then: $60,000 + 1/3 balance to spouse. Remainder to children equally, or lineal descendants, per stirpes
                                                                                                                ii.     Spouse is not parent of any of the kids: $20,000 + 1/3 balance.   Remainder to children equally, or lineal descendants, per stirpes
e.       if no kids or their lineals, all to spouse
f.       if no spouse and no kids or their lineals, to the parents equally or the surviving parent
g.       no spouse, no kids or their lineals, and no parents, then to brothers/sisters (including half-bloods) or their lineals, per stirpes
h.      if no siblings, then ½ to both sides of grand parents or to the survivor of them
i.        if one side of grandparents is deceased then that share goes to their lineals, per stirpes. if none then to the other grandparents or lineals surviving. if none, then to the next of kin of T; though there shall be no representation among such next of kin
                                                                                                                  i.     ie, if a 3rd cousin has predeceased then his kids don’t get his share
                                                                                                                ii.     what about GGP’s? is there representation through them?
j.        if no next of kin, then to stepchildren or their lineals, per stirpes
k.      if no step children, escheat to the state.