» Last Will and Testament

Preventing Will Contests in Ohio: What is Pre-Mortem Validation?

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

How Can I Prove Undue Influence in Making a Will?

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?

The Law of Undue Influence

"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

What is a Pour-Over Will?

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.

Do I Need a Pour-Over Will if I've Funded My 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

Does Having a Will Prevent Probate in Ohio?

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

If You Die Without a Will, What Happens to Your Property?

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.

How Ohio Intestacy Laws Work

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

What Does it Mean to Probate a Will?

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.

Why Must Wills Be Probated?

W… Read More