Most of the time, when someone leaves a will, their assets are distributed according to the terms of the will, after all of the debts of the estate are settled. Occasionally, though, a last will and testament will make bequests that just cannot be fulfilled; there are not enough assets left in the estate. When that happens, who gets shortchanged? Do some heirs receive their entire bequest, while others get little or none of what was "left" to them? Abatement of legacies is the law of who gets what, and how any shortfalls are handled.
Why would abatement of legacies be necessary? Who would leave their heirs assets that they didn't have? Most people don't intend to do that, of course. But the reality is that the value of an estate can go up and down between the time a will is written and the time it becomes necessary to distribute assets. In addition, estate debts can be higher than anticipated, particularly if the last illness of the deceased person incurred significant medical bills.
Put simply, there are often the same number of people at the table, but the size of the pie is smaller. The question then becomes: how is the pie divided? Do some people leave the ta… Read More
Probate litigation is on the rise, in Ohio and across the United States. One possible reason for the uptick in cases is tied to the increase in divorce over the last several decades. More people divorcing means more people remarrying, which means children from a first marriage might be pitted against a stepparent or step-siblings when it comes time to inherit. Of course, there are other reasons there might be an fight over a will or trust. A close relative who receives a smaller inheritance because of a bequest to a friend or caretaker might be suspicious that that person exerted "undue influence" over the deceased. Much, if not most, probate litigation regarding the validity of a will or trust is based on claims of undue influence. Let's take a look at what is involved in identifying (and proving) undue influence.
The same scenario could be looked at in two completely different ways. Let's say that Mary is an older woman with limited mobility whose only child, Jeff, lives across the country. He rarely visits Mary, though he calls once a week or so. Mary has a neighbor, Tim, who drops by regularly. He helps her with things like c… Read More
Making a will is an intensely personal undertaking, and it frequently happens that the testator (person making the will) decides on a distribution of assets that at least one heir is unhappy with. In those cases, or in situations where there is conflict among family members, the testator may be worried about someone contesting the will after his or death. Enter the "no-contest" clause, also called an in terrorem clause.
What exactly is a no-contest clause? Just what you might expect: a provision that if an heir challenges a will in court and loses, he or she will inherit nothing. Because challenging a will successfully is not easy to do, the presence of a no-contest clause may be enough to discourage an heir who is simply trying to grab a bigger piece of the pie or make trouble for estranged family members.
Of course, in order for a no-contest clause to be effective as a deterrent, there must be some risk involved in challenging a will. If an heir has been disinherited altogether, or left a nominal amount, it may be worth it from his or her perspective to challenge the will. The "teeth" of the no-contest clause lie in the provisi… Read More
Preventing will contests is something most people making a will don't think much about, but probably should. Picture a scenario in which the matriarch of a family dies and leaves behind two heirs: a daughter, and a granddaughter, child of the matriarch's late son. Now imagine that she left her granddaughter the great majority of her estate. The granddaughter claims that her grandmother did this of her own free will. The daughter with the reduced inheritance claims the granddaughter exerted undue influence on her grandmother, who was not of sound mind, to get her to change her will.
A lengthy and contentious will contest ensues, in which accusations are hurled, relationships are destroyed, and much of the estate is consumed in legal battles, rather than going to the heirs. In the end, the court makes a decision as to whether the matriarch's will was valid or procured by undue influence, and the heirs take the assets to which they are entitled, but with a sense of bitterness and loss.
Similar scenarios play out in probate courts in Ohio, and throughout the country, every day. The players may be different, but the story is the same: a will is challenged, heirs fight… Read More
When a loved one passes away, how much you will inherit is probably the last thing on your mind. But after the funeral is over and the mourners have left, when the will is submitted for probate, some people receive an unpleasant surprise. Someone they don't know well, perhaps an attorney, caretaker, or friend of the deceased has been left a large bequest in the will, with close relatives receiving much less than they might expect.
In these circumstances, the slighted relatives might reasonably reach the conclusion that the attorney, caretaker or friend exerted some sort of improper influence or control over the deceased to get them to change the will in the third party's favor. But how does one prove this?
"Undue influence" is a legal term. If it can be proved that someone exerted undue influence, a will may be invalidated and a previous will reinstated, or assets may pass under the law of intestate succession. But a court must make specific findings in order to determine that a will was created under a third party's undue influence.
In order… Read More
There is a lot of talk about the advantages of living trusts, an estate planning tool most people have probably heard of. Pour-over wills, sometimes associated with living trusts, are much more unfamiliar to the average person. What is a pour-over will—and should you have one?
Simply put, a pour-over will is a will that distributes all of the assets remaining in the sole name of the person making the will (the testator) to a trust upon their death. The trust may be one already in existence when the will is made, or may be created at the same time as the will.
Though most people who have a living trust fund the trust during their lifetimes, there's no requirement that this be done if there is a pour-over will. The trust can simply wait, a vacant receptacle, waiting for the pour-over clause of the will to be applied and pour all of the testator's assets into the trust.
A pour-over will can be useful even if you have most of your assets in a living trust. Most people acqui… Read More
Will a will prevent probate? A surprisingly common misconception is the idea that having a valid will in place prevents one's estate from going through the probate process. In fact, leaving property to your loved ones via a last will and testament guarantees that at least a part of your estate will have to go through probate. Probate is the process of authenticating a will (if one exists) and distributing assets according to its terms.
What having a will does prevent is an estate being distributed according to Ohio's intestacy laws. These laws are intended to distribute the property of a deceased when there is no will or other valid estate plan. Intestacy laws try to approximate what most people would do with their property had they had an estate plan. Typically, people would provide first for their spouse and children, and then for more distant relatives. Like other laws that are intended to cover a wide range of people, inte… Read More
You've heard countless times that you should have a will. But have you ever wondered what will happen to your property if you should die before you get around to making one?
The short answer is that the State of Ohio has a law, known as an intestacy statute, which dictates how your property will be distributed. Intestacy laws generally attempt to distribute your property as the state imagines most people would do if they had actually made an estate plan. It's a very "one size fits all" system, and like all things that are "one size fits all," it often doesn't fit a particular individual's needs very well.
A surviving spouse would inherit everything if the decedent left no children (or their lineal descendants, such as grandchildren or great-grandchildren). The surviving spouse would also take everything if there were children, grandchildren, or great-grandchildren, so long as those descendants were descendants of both the decedent and the surviving spouse.
From there it gets a little more complicated. People who are divorced or widowed often remarry, leaving a … Read More
The word "probate" itself means to prove or validate. So, probating a will is the process of proving that the document is authentic, a true representation of the wishes of the person making the will, known as the testator. Even if a last will and testament truly represents the testator's wishes, however, it must also meet certain legal requirements to be valid and legally enforceable in Ohio.
A will generally does not have any legal effect until it is probated. Let's say a testator keeps his will in his desk drawer, and his wife, who knows the will's location, is named as personal representative. When the testator dies, the wife cannot simply take out the will and distribute the property as it dictates. The Ohio probate court for the county in which the deceased testator lived must first probate the will, then oversee the distribution of assets. If a testator lived outside of Ohio, but owned real property in Ohio, his or her will must be probated in Ohio as well as the home state.
Wills must be probated in orde… Read More