What does it take, in terms of mental capacity, to be able to make a will in Ohio? To create a trust, make a gift, or to form a limited liability company (LLC) for estate planning purposes? The answer to these questions is at the heart of many challenges to Ohio estate plans.
A will is only valid if the person making it, known as the testator, had "testamentary capacity." But what exactly is testamentary capacity, and when does a test for it apply? Does an individual need greater capacity to make a will than, for instance, to make a lifetime gift?
Unfortunately, Ohio law does not have a statute on the books setting forth the test of capacity for using various estate planning documents and making certain transfers. Attorneys and judges must rely on the common law, and while there is some case law on the capacity to make wills, there is much less regarding the definition of capacity to create a trust, an LLC, a power of attorney (POA), or a gift.
The issue of testamentary capacity comes up most fre… Read More
A court challenge to a will or trust is something no one wants, but few people actively try to avoid. If your last will and testament, or your trust, are challenged after your death, it can be devastating on many levels. As you might expect, such a challenge is usually time-consuming and costly. But even more important to many people, will and trust contests can lead to permanent rifts in a family. Even if the financial outcome is what the person making the will or trust intended, the personal fallout may not be able to be repaired. Fortunately, Ohio now offers a new tool to protect your will and trust from challenges.
In March 2019, testators (creators of wills) and settlors (creators of trusts) will have the opportunity to have their wills and trusts declared valid before their deaths, a process called ante-mortem procedure. This process is not entirely new; Ohio residents have had the ability to have their wills declared valid during their lifetimes for years. However, the prior statute did not include the opportunity to valid… Read More
Ohio, like other states, has laws that dictate how a the estate of a deceased person (decedent) passes when there is no will. These laws, called “laws of intestate succession,” guide courts, and administrators, as to how the decedent’s assets should be distributed. How does Ohio inheritance work when there is no will?
For the most part, laws of intestate succession try to approximate what most people would intend if they had made a will. If there is a spouse and children, for instance, they will inherit rather than a half-sibling or a first cousin once removed. (If you would prefer your first cousin once removed inherit from you instead of your spouse, you had better get yourself an estate plan—or a divorce lawyer.)
Things get considerably more complicated, though, when there are no close relatives, or when heirs are not of the same degree of relation to the deceased. It’s easy to figure out what to do when the deceased is survived by three adult children, but no spouse: the estate is divided into three equal shares. But what if one of those adult children has died, leaving three children of his own? Or what if the deceased had no surviving spouse, childr… Read More
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 tabl… 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 cha… 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 provision's… 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 for a… 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 acquire an… 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, intes… Read More