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Trusts, wills and the cy pres doctrine

In some Ohio cases, a person's will or trust will contain provisions that cannot be effectuated if they are strictly followed. In order to be able to follow the decedent's wishes in such a case, the courts employ something called the cy pres doctrine.

The cy pres doctrine is a flexible approach to wills and trusts designed to honor the testator's intent. The court will first determine that the flexible approach will not conflict with the testator's intent before applying the cy pres doctrine. In these cases, the testator's intent would not be able to be followed due to the inability to follow specific provisions in the will or trust. Cy pres allows the court to ignore such provisions so it can then honor the testator's wishes for how their property is to be passed.

Cy pres is never used to change the dispositive provisions, however. This means the court can't use it to change a beneficiary on its own. If a charitable trust's purpose becomes obsolete over time, such as a closed charity that was a named beneficiary, the court may select a new charity to receive the funds if it determines the testator's intent was to benefit charity in general.

People may want to get the help of an estate planning attorney when they are planning to write a will or to set up a trust. An attorney may be better able to draft provisions in such a manner that they are clear and able to be implemented without necessitating the use of the cy pres doctrine. An attorney may also help clients by advising them on different types of estate documents that may be appropriate for their individual estate needs. With the right mix of different estate documents, the client may then be in a better tax position and their assets may pass more smoothly.

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