Errors in Wills or Trusts Caused by Other Attorneysby Ted Gudorf (Gudorf Law Group, LLC)
Occasionally, Ohio probate attorneys have to deal with an estate in which another attorney made an error when drafting a trust or a will. Sometimes there are mathematical errors. To resolve an error in a trust or will, the probate lawyer assisting the executor or administrator must open a case in Ohio probate court.
In a recent case I was involved in, a client’s father had a trust prepared back in 1994 for the family’s 200-acre farm. Unfortunately, the trust documents contained an error that wasn’t discovered until the father died several months ago.
This could have been an Ohio probate attorney’s worst nightmare. Fortunately, the family members were very cooperative and the situation was resolved without much conflict. As you’ll see, however, it could have come out quite differently.
An Ohio Probate Attorney’s Resolution to a Trust Document Error
The error in the documents for the irrevocable trust was this: all of the father’s nine children were identified in one article of the trust, but another article stated that half the property was to go to one son and 1/18th of the property was to go to each of the other eight children. If you do the math, that leaves 1/18th of the property unaccounted for. Since the farm was worth $3 million, that meant that almost $170,000 worth of property was unaccounted for.
The solution was to have the trustees of the irrevocable trust file a lawsuit against all nine children in the local Ohio probate court. In the lawsuit, we alleged that the trust did not contain the terms intended by the father and asked the court to modify the terms of the trust so that one child received half and the other eight children each received 1/16th of the property, which accounted for all of it.
In the lawsuit we took advantage of a recently passed addition to Ohio’s trust code (5804.15) that permits reformation of a trust’s terms if it can be proved that a mistake was made and the trust’s terms don’t accurately reflect the intention of the trust creator.
Fortunately, all the children were in agreement and the court granted the change without much ado. However, if the children had not agreed or had not had good relationships with one another, the situation could have been very different. The Ohio probate court proceedings could have dragged on for months and the resulting Ohio probate attorney’s fees and court fees could have been very costly. This is one of many reasons it’s important to have your trust or will drafted by an experienced and competent attorney.
Gudorf Law Group, LLC, can help ensure your irrevocable trust or will is drafted correctly, so your heirs don’t have to file a lawsuit in an Ohio probate court. Call our Ohio probate attorney’s office at 1-877-483-6730 to schedule a free consultation.