» Last Will and Testament
Is a Handwritten Will Valid in Ohio?
When planning your estate, one of the most important documents you'll create is your will. This legal document outlines your final wishes and how you want your assets distributed after you pass away. While most people think of a will as a formal document drafted by a lawyer, you might be surprised to learn that a handwritten will, also known as a holographic will, can be legally recognized in some cases. But what about Ohio? Is a handwritten will legal in Ohio, and are handwritten changes to a will legal? Let’s explore the details.
Can You Write Your Own Will in Ohio?
In Ohio, a handwritten will is legal under certain conditions. A handwritten will can be valid as long as it meets specific legal requirements. Ohio law requires all wills (including handwritten ones) to be signed by the testator, and witnessed by two individuals who are not beneficiaries of the will.
While it may seem simple to grab a pen and paper to jot down your final wishes, the state of Ohio takes the validity of wills very seriously. The reason for these strict requirements is to ensure that the will accurately reflect… Read More
Does Your New Will Invalidate Your Old One?
Creating a will is one of the most crucial steps in estate planning, as it ensures your final wishes are honored after you pass away. As life changes, however, you’ll likely need to update your will. So, what happens to the old will when you make a new one? Does your new will invalidate your old one? Let’s explore how this process works and what steps to take to ensure your new will is valid and effective.
Understanding Will Revocation
When you create a new will, you generally intend for it to replace any previous wills. In legal terms, this is called "revocation." But does your new will automatically invalidate your old one, or is there something specific you need to do to make sure the old will is no longer valid?
Does Your New Will Invalidate Your Old One?
Yes, a new will typically invalidates an old one. When you create a new will, it usually includes a clause that explicitly states that all previous wills are revoked. This clause is important because it clearly indicates your intention to cancel any former wills. Without this revocation clause, confusion or legal challenges can arise regarding which will is the valid one.
Is an O… Read More
Are Funeral Wishes in a Will Legally Binding?
Thinking about your own funeral can be kind of uncomfortable, but most of us have at least a general idea of what we would want: burial or cremation, funeral or memorial service, religious or secular. Some of us have highly specific funeral wishes. For instance, one older woman we knew wanted the church at her funeral decorated with her large collection of decorative birdhouses; at the end of the services, mourners were instructed to take a birdhouse they liked to remember her by.
Whether you have imagined every detail of your send-off, or whether this is the first time you’ve thought of it, one thing is for certain: you won’t be there to carry out your own wishes. If you want the funeral you have envisioned, you will have to communicate your preferences to someone else. But what is the best way to do that? The logical way to convey your funeral wishes might seem to be a will. Read on to learn why putting your funeral preferences in a will is probably a bad idea—and to get some better ones.
Does a Will Include Funeral Wishes?
Technically, a will can include funeral wishes, but that doesn’t mean those wishes are legally binding. But there’s ano… Read More
What Happens if There’s a Mistake in a Will (or Trust?)
People end up in court all the time because of a mistake or ambiguity in a document; one party interpreted a phrase as meaning one thing, another interpreted it differently. The court needs to decide which interpretation is correct. Or the document itself may be inconsistent, and it falls to the court to decide what was intended.
The need to interpret (and sometimes reform) a document often happens in the context of a contract dispute. But it also occurs with wills and trusts. How do Ohio courts address these mistakes or ambiguities?
Mistakes and Patent and Latent Ambiguities in Wills
To answer this question, we have to talk about the kinds of mistakes and ambiguities that arise. First, there are what lawyers call “patent ambiguities.” These are ambiguities that are obvious just from reading the document. For example, “I bequeath to my brother Daniel the sum of fifty thousand dollars ($5,000)” is patently ambiguous. Does the person making the will (the testator) mean the amount that is spelled out, or the numerical amount, which is different?
Then there are so-called “latent ambiguities.” These are statements that make sense on their fac… Read More
Testamentary Capacity in Ohio (Who Has Capacity to Make an Estate Plan?)
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.
Ohio Law Regarding Testamentary Capacity
The issue of testamentary capacity comes up most fre… Read More
Protect Your Will and Trust From Challenges
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
How Does Inheritance Work When There is No Will?
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
Abatement of Legacies: What Does it Mean?
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
Identifying (and Proving) Undue Influence
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.
Proving Undue Influence in Ohio
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
What is a "No-Contest" Clause?
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