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Monday, November 24, 2014
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Published: Sunday, 1/17/2010

Make sure your will does what you intend

Dear Dale: I have a standard will that calls for my son and daughter to share and share alike. My estate is mostly a house and some savings. If my daughter and I were killed in an automobile accident, would her half go to my son or to my daughter's children by a former marriage?

Without having the will in front of me, it's impossible for me to tell you how your estate should be distributed. But I can provide some information that should allow you to make a decision about whether you need to have a new will drafted so it accomplishes what you intend.

When courts interpret a will, they try to make sure they're following the intent of the person who drafted it. Trying to divine the intent of the testator, who is the deceased person for whom the will was drafted, isn't always easy. That may happen because circumstances change in the years following the drafting of the will or the will language simply isn't as clear as it should be.

The trouble for the court is determining whether the language of the will is ambiguous. And since we're talking about money, one side is going to argue the language should be interpreted one way, and the other side will want it read their way.

The cases I've read that deal with this issue in Ohio usually revolve around situations where a parent has a will containing a clause that says something like "to my children, John Smith and Jane Smith, equally share and share alike, or to the survivors thereof."

Let's assume that a mother has a will with that same language and further assume that Jane Smith dies before her mother. Jane's kids would want the line "survivors thereof" to mean that the surviving children of Jane should take the share she would have received had she lived. Assuming John Smith survived his mother and sister, he's going to want that same line to mean the estate goes completely to him because he's the only surviving named beneficiary.

In Ohio, the law seems clear that John Smith would take the estate as the sole surviving beneficiary. The "survivor thereof" language has been interpreted to mean that those beneficiaries who survive the testator receive the contemplated property.

I don't want to muddy the waters here, but I should mention that if the language of the will weren't clear, the state's anti-lapse law could kick in. That law would allow Jane's kids to take her share in the above scenario. But the statute wouldn't apply if the will contained the survivor language I discussed.

So, in looking at your situation, you should review your will with a lawyer to make sure it will accomplish what you intend. If you want your estate to go to your daughter's children should your daughter die before you, you can make that clear in your will. If, on the other hand, you want your estate to go only to the child or children who survive you, you can make that clear too. If you don't think your will language is clear, make sure you have it drafted in a way that makes your intent plain.

You also might consider looking at another issue. Your question says that your estate consists primarily of your house and savings. You can set up your deed and your bank accounts with transfer on death provisions that determine who receives the property in the event of your death. You can contemplate scenarios where the named beneficiaries don't survive you and list contingent beneficiaries.

An attorney who handles estate planning matters can help you this situation. It probably wouldn't cost you too much in legal fees because the issue looks fairly straightforward.

Dale Emch practices law at the Charles E. Boyk Law Offices, LLC, in Toledo. In his column, he will discuss general legal principles and answer readers' questions. Neither Mr. Emch nor The Blade present or intend his column to be taken as legal advice. Readers seeking legal advice should consult with an attorney. Readers should send their questions to Mr. Emch at demch@charlesboyk-law.com or Dale Emch, 405 Madison Ave., Suite 1200, Toledo, OH 43604. His blog is at www.toledocaraccidentlawyerblog.com.



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