The last will is the most commonly used estate planning device. Many people assume that a will is the right choice as an asset transfer vehicle if you are not a multimillionaire. They think that trusts are only useful for extremely wealthy families. In fact, this is not the case, and you should definitely get in touch with us to discuss the reasons why you may want to use a different legal device.
One of the major disadvantages that enters the picture when a last will is utilized is the fact that it must be admitted to probate after the death of the testator. This is a lengthy process that forces the inheritors to wait for months to receive their inheritances. In most cases, it will take around nine months at minimum if the estate is not especially complicated. There are also numerous expenses that pile up during the probate process, and this reduces the overall value of the estate.
Another thing about probate that could be looked upon as a negative is the fact that it is possible to contest a will during the probate process. If a disgruntled party that really does not have a strong case wants to emerge and slow things down to a standstill, there is a window of opportunity. This being stated, sometimes a last will challenge is valid. Let’s look at the rules in the state of Ohio that govern will contests.
Age and Acceptable Grounds
You have to be at least 18 years of age to be able to contest a will. Another requirement is that you must have a financial interest in the estate. For example, there are intestacy rules of succession that would dictate asset distributions if the person passed away without a will. If you would have been in line for an inheritance under these circumstances, and you are not named in the will, you would have an adequate financial interest. Of course, this does not necessarily mean that you would win the will contest.
There is a time limit when it comes to will challenges. In the state of Ohio, you have to file the contest with the probate court within three months of the passing of the decedent. There is one exception to this rule. If you were physically unable to file the contest because you were disabled or incapacitated, an extension may be granted by the court.
In order for a will to be valid, the testator must be of sound mind. However, there is a very broad definition that is applied here. People have the right to make unconventional decisions, so it is not easy to prove that a decedent that has disinherited you did so because of mental incapacity. This is not to say that it doesn’t happen, but there is a heavy burden of proof.
There is also the matter of fraud or undue influence. Let’s say that an elder is receiving living assistance from a caregiver. The person in question is very vulnerable, and the caregiver says everything possible to coerce the elder into creating a will that leaves everything to the manipulator. If this type of scenario can be proven by the surviving family members, the will contest could potentially be successful.
In every state, there are certain rules that must be followed with regard to the proper creation of a last will. If the execution was improper, the court could find that the will was not valid if a challenge was presented. We practice law in the state of Ohio, and the procedure is rather simple and straightforward here. To create a valid will, you must sign it in front of two witnesses, and the witnesses must sign the will as well. Notarization is not necessary in our state.
This is a basic overview, but to address the question that serves as the title of this blog post, yes, it can be difficult to contest a will. This is especially true if you do it on your own without any legal representation. If you think that you do have a case, we would be more than glad to learn about the details and let you know if you may be able to prevail in court.
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