Will and Estate Planning 101

Having a properly executed will can provide a great peace of mind.  It is a reassurance that your estate (all the stuff you own when you die) will be passed on to the people you wish to have it.

This is a topic that I receive a lot of questions on so I wanted to go over some basic information regarding wills.  I want to preface this by saying that there is no substitute for speaking with an attorney as to whether or not you should consider having a will drafted, because every client has a different set of circumstances to take into consideration.  As always, if you are unsure, you should contact an attorney.

Now, I don't want anyone reading this to think that I have included everything there is to know about wills, so I decided to include a couple of pictures of my 2014 Ohio probate code book.  Hopefully this will impress upon you that probate law (which governs, among other things, how a deceased individual's property is distributed) is not something that can be summarized in a paragraph or two.  My goal here is to simply outline a few key terms and concepts that can help you make a more informed decision.

 




















In probate law, the deceased fall into one of two categories: those with a will, and those without a will.  Those without a will are referred to as being "intestate," and Ohio's probate code establishes how the deceased's property is to be distributed.  This is known as intestate succession and Ohio's can be viewed here.

Another issue that comes up is the difference between probate and non-probate assets.  Probate being the process by which a court will transfer ownership of your property to the people you choose to leave it to (or the people listed in the above statute).  There are certain kinds of assets which are considered "non-probate" assets, which means that they pass on without any action from a court.  The most typical example is a life insurance policy.  This is basically a contract between you and the insurance company where, upon receipt of a copy of your death certificate, they are to pay the named beneficiary that you have listed.  This doesn't require a probate court, it just happens automatically.

If you are thinking of having your will drafted, there are some questions that you should probably start asking yourself.  I generally encourage people to think about anything specific that they want to have passed down to a particular person (i.e. I want my necklace to go to my daughter) which is referred to as a specific devise.  After that, it will be necessary to decide how you want the rest of your estate to be passed on.  Oftentimes people will come up with a percentage such as "100% to my children" or "50% to my spouse and 50% into a trust for my children."

Once someone has decided how they want their estate to be distributed, it is then time to figure out who will be responsible for achieving those goals.  Almost all wills contain a cast of characters who will play important roles once you pass away.  Again, I am not providing an exhaustive list, just a few positions that you should think about.

Executor: This is the person who you are putting in charge of your estate.  This should be someone you trust. who is organized and reliable, as they will be responsible for seeing to it that your possessions make their way into the hands of your loved ones. The court will have oversight for their actions, and they will be compensated by your estate.  If you do not name an executor, the court may appoint one.

Trustee:  Depending on your individual circumstances, your will may direct some or all of your possessions into a trust.  The purpose of a trust is to provide for an individual or group of people known as the beneficiaries.  Oftentimes a will can be used to establish a trust in order to provide for minor children until they reach a certain age, but there can be many other reasons to establish one.  The trustee is responsible for managing the trust.  Again, this should be someone you are confident can handle responsibility, as they will have a great deal of discretion in how they manage the property that is placed in the trust.

Guardian:  This person is to become the legal guardian of your minor children.  This is more than a person who attempts to execute your wishes, they will be responsible for your children's upbringing until your children reach adulthood.  This isn't just someone you think would be okay with the idea of taking care of your kids.  This should be someone who you have sat down and talked to about whether they would be okay with that responsibility.

Alternates:  For every person you may consider for the above listed responsibilities, you should also think of an alternate, and perhaps even a third person if you can.  For a will to be truly thorough, it should contemplate many different contingencies and scenarios.  This can feel incredibly redundant, but the person you would hope takes on the responsibility may not be able to do it for any number of reasons.

There is another thing to consider when thinking of the responsibilities you are asking people to take on.  They might say "no."  They may completely 100% be on board for taking care of these things when you pass on, but when the time arrives they refuse.  This also goes for any property you wish to pass on.  The beneficiary may simply not want it.  There could be any number of reasons for someone to refuse something passed to them by a will, but they are not under any legal duty to accept what you intend to pass to them.

Having a properly drafted will takes a bit of planning, to be sure.  While not everyone necessarily needs one, it is big step in making sure that your loved ones are taken care of at a time when they will be emotionally upset.  I hope this has been a helpful read, but for true legal advice on getting a will prepared you should contact an attorney in your area.


This writing is for informational purposes only and should not be construed as legal advice or forming an attorney client relationship.  If you are in the Dayton, Ohio area and think you are in need of legal counseling or representation, feel free to contact Strain Law Office to schedule an appointment.

5 things everybody needs to know about contracts.

First things first: we enter into contractual relationships all the time without giving it a second thought.  I'll give you an example:

Let's say you're feeling hungry, so you decide to head on down to your favorite burger joint.  You park your car, head inside, and wait in line.  While you're waiting in line you look up at the big board behind the cashier.  There's a bunch of individual items and some combo meals, and everything has a price listed next to it.  When it's your turn, you step up to the cashier and place your order.  The cashier rings it up, you pay for your order, and the cashier hands you a receipt.  Congratulations, you just entered a contract.

A contract is, fundamentally, any legally enforceable promise.  The burger joint offered to serve you a meal at a set price, you agreed to pay that amount of money in order to receive the meal.  You held up your end of the bargain by paying for the meal and now the burger joint is contractually obligated to hand you that number 5, no onion, extra pickles.

Contracts can be as simple as ordering a sandwich, and as complex as an imaginative attorney can make them.  So regardless of what it is for, there's a few things everyone should know about contracts.

1.  You don't have to read a contract to be bound by it.

I can not begin to tell you how many times I have heard a client lament, "I didn't know it said that!"  This is never a good thing to hear for two reasons: 1) It's probably true, which means that the client feels taken advantage of; and 2) it doesn't matter once you get into a courtroom.

If we could escape contractual obligations by simply not reading the contract, then no one would read contracts, and no contract would be enforceable.  When you sign a contract, courts apply what is known as a "presumption" which assumes you were aware of all of the relevant terms and conditions, whether or not you really were.  The moral of the story is that if you don't know what a contract says, don't sign it.  If you have questions about the agreement, ask.  Better still, if you have the opportunity, contact an attorney.

2.  Just because it's in the contract, doesn't mean you have to do it.

Now, before you start thinking you can break that lease agreement without any repercussions, most of the things you find in a formal contract are enforceable.  Contracts are usually drafted by attorneys and a lot of thought is given to every aspect of each provision.  With that said, I have seen language in formal and informal contracts which is unenforceable.

As unenforceable terms go, the one I see most often is found in most (if not all) apartment leases.  Buried somewhere on the second or third page, in very fine print, will be something along the lines of, "if the Tenant fails to fulfill their obligations under this lease agreement, the Tenant hereby agrees to pay any and all legal fees incurred by the Landlord as a result of such breach."

Sounds legal right?  It isn't.  Ohio Revised Code 5321.13 (C) states that "no agreement to pay the landlord's or tenant's attorney's fees shall be recognized in any rental agreement for residential premises or in any other agreement between a landlord and tenant."  What that means is, while landlords are free to place that language in a lease agreement, no court will enforce it.  This type of language is often written into what are known as "form contracts."  (See number 3 below for an explanation).

So if it isn't enforceable, why is it in the contract?  Two reasons: 1) using spooky language that sounds right (even though it isn't) is one way of trying to get the tenant to believe that it is in their best interest to not bring a lawsuit under the lease agreement, because if they lose, they will have to pay for the landlord's attorney; and 2) most lease agreements are used in multiple jurisdictions and states, so there's an off chance that it may be enforceable somewhere else.  This brings me to my next point:

3.  Form contracts

Form contracts are typically what people think of when they think of a contract.  It is what you signed when you got your cell phone plan.  These are standardized contracts, usually used by large companies, and the consumer has absolutely no chance to bargain or negotiate the terms of the agreement.

This type of contract is a double-edged sword.  On the one hand, imagine if you had to hire an attorney every time you wanted to change your cell phone plan or carrier?  It is a ludicrous idea, which is where the form contract does a lot of good.  Both the customer and the company save a lot of money by having a "one-size fits all" contract.  The bad news?  You don't get to change anything in the contract.  You either accept the terms, or you don't get the product or service.

Because of this uneven footing between the customer and the company, courts interpret these contracts (more than most other contracts) under a doctrine known as contra proferentum.  This doctrine, at its simplest, means that the terms of the contract are interpreted in favor of the disadvantaged party. Basically, there is a trade-off made when you sign a form contract.  You don't get to negotiate the terms of the contract, but if there is any ambiguity to the terms, a court will interpret in favor of you, instead of the company that created it.

As far as what you can be obligated to do, standardized "form contracts" are meant to be used across a large number of jurisdictions.  Once again, just because the contract says something, doesn't mean it is legally enforceable.  If you aren't sure, contact an attorney.

4.  Don't let them tell you what the contract says.

If there is one thing I wish I could tell every consumer who is about to sign a contract for something, it's this: if it isn't in the contract, it isn't a part of the deal.  There are rare exceptions to this rule of thumb, so it is important to compare what you are being told with what the contract says.

I have heard it countless times, "but the property manager/salesman/receptionist told me that the contract said                      ."

Did it?

There are a couple of ways this problem comes up.  An aggressive salesperson may imply that you are getting something as part of your agreement.  However, if that "something" isn't reflected in the contract, then it will be your word against their's.  This is not a god position to be in.

Another way this problem comes up is when the contract says that you are obligated to do something, but the other party says "don't worry about it."  A common example is a landlord who tells you not to worry about being a little late on the rent.  The property manager, or the owner, may suggest that being a few days behind is no problem.  If that's true, then get it in writing.  Otherwise, you may find yourself being evicted for paying rent late, which according to the lease agreement puts you in breach.  You can scream and shout that the landlord told you it was okay, but what proof do you have?

When there is a dispute involving a contract, always remember: the court will look at what is in the contract first and foremost.  If you are being told that a contract contains certain provisions, but the person telling you so can't point to them somewhere in the contract itself, you need to seriously reconsider what you are about to sign.

5.  When the deal falls apart, lawyer up.

Contracts can say a lot of things.  Contracts can contain unenforceable provisions.  Contracts might not say things that you were told they did.  There are causes of action, defenses, and remedies that all take place outside the words of the contract itself.  This is why taking on the other party, whether you are suing or defending a lawsuit, is something you need to run by an attorney.

Most attorneys will provide a free consultation, if only to sort out whether you have a viable case.  You may need to go to court or you may be able to reach a settlement, but oftentimes you will need someone with knowledge of contract law to get a fair result.


If you are in the Dayton, Ohio area and think you are in need of legal counseling or representation, feel free to contact Strain Law Office to schedule an appointment.

Strain Law Office, LLC