Estate planning is often looked upon as the act of expressing the way you want your assets to be distributed in writing in a legally binding manner. This is certainly at the core of the matter, but you should also consider the estate administration phase that will get underway after your passing.
It is especially important if you intend to make some inheritance planning choices that are not going to sit well with someone that is expecting a bequest. An estate challenge can create a great deal of acrimony and procedural complications, and you should take this into consideration.
Probate and Will Contests
If you state your final wishes in a simple will, the executor would be required to admit it to probate. This is a court supervised legal process, and during probate, there is a proving of the will.
The court is required to examine the document to determine its validity. Anyone that would like to contest the validity of the will can make their case while the estate is being probated by the court.
There are a number of different clearly defined acceptable grounds for an estate contest, and one of them is improper execution. In order for a will to be valid in Ohio, it must be executed by an adult that is of sound mind, and it must be signed in front of two witnesses. The witnesses must also sign the document in the presence of the testator.
The incapacity of the grantor would be one of the grounds for a contest, and fraud is another one. Undue coercion is a ground for a will contest, and intimidation is the other pretext.
Revocable Living Trust
If you think that that there is a chance that someone will contest your will, you can proactively take steps to make a very difficult. You can use a revocable living trust as your primary asset transfer vehicle instead of a will, and you can include a no contest clause.
One of the benefits that goes along with the utilization of a living trust is the avoidance of probate. In addition to the fact that it provides an open window of opportunity for disgruntled parties that may want to challenge the will, there are other probate drawbacks.
No inheritances are distributed until the estate has been probated and closed by the court, and it will take about eight months at minimum in most instances. More complicated cases can be stuck in probate for longer periods of time, and probate expenses eat away at the value of the estate.
Do you want everyone and anyone to be able to know how you decided to distribute your resources? If you use a will, this will be the result, because probate is a public proceeding. Anyone that wants to access the records is perfectly free to do so.
The no contest clause will disinherit anyone that is named in the trust as a beneficiary if they challenge the terms. A disgruntled individual could file a lawsuit to contest the terms of a trust, but they would be risking their inheritance.
This is one disincentive, and the legal action would be expensive. Plus, there would be no guarantee of the desired outcome. If you think about the burden of proof, there is a steep hill to climb when you are challenging the decision of a deceased relative that left you an inheritance.
Take a Deep Breath
You should probably think twice before you completely disinherit a child or someone else that will be expecting an inheritance. Is it really worth the potential acrimony that will negatively impact everyone else in the family? A minor concession may be the prudent course of action in some cases.
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