Every person over age 18 should invest in a will, also called a last will and testament. The biggest reason for having a will is that a properly prepared will will help your surviving family members avoid unnecessary expenses when distributing your assets when you die.
However, no matter how well wills are written, wills sometimes do not work out the way that the will-maker intended.
For example, I could include a provision in my will that states that when I die, my house in Leipsic shall be given to my niece. Such a provision is pretty straightforward.
But, what happens if I do not own a house when I die? In such an instance, my instruction to give my house in Leipsic to my niece fails (also known as “adeems”) due to non-existence, because I simply no longer have my house in Leipsic. When an asset adeems, the law presumes that I wanted to disinherit my niece (at least as to that house in Leipsic) and calls the act of disinheriting my niece through this process “ademption.”
However, the law does not ignore all distribution instructions in a will that involve property that I do not own at the time of my death.
For example, my will might state that I want my executor to sell my house in Leipsic in order to give $15,000 of the proceeds to my niece. In that instance, the law presumes that my overriding intention is to get $15,000 to my niece and that the executor should use other assets (if there are any) to pay my niece the $15,000 even if I do not own a house in Leipsic when I die.
An opposite circumstance arises when someone named in a will fails to outlive the will-maker.
Illustratively, I may include a provision in my will that states that my pickup truck is to be given to my uncle when I die. If my uncle dies before me and I do not update my will, the gift of my truck would “lapse.”
To fix the possibility of a will’s gift (called a “devise”) lapsing, Ohio passed an anti-lapse law that dictates that many devises will not necessarily lapse if the receiver of the devise dies before the will-maker. Under that law, certain lapses devises would instead be given to the intended receiver’s heirs.
The anti-lapse law only applies if the receiver of the devise is a grandparent, descendant of a grandparent or stepchild of the will-maker.
If the devise recipient fits into one of the definitions above and the devise recipient does not outlive/survive longer than the will-maker, the heirs (kids or other descendants) of the devise recipient are likely to receive the devised item.
If the anti-lapse law does not apply, an item for which distribution has lapsed will be distributed pursuant to the generic but crucial “everything else I have is to go to so or so” provision in the will, which provision is commonly called the will’s residuary clause.
Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at [email protected] or at 419-659-2058. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.
