By Barry Zimmer on November 27th, 2019 in Estate Planning
When a last will is utilized to direct transfers of personally held property, it would be admitted to probate. The executor that is named in the document would handle the estate administration tasks under the supervision of the probate court. There are a number of things that everyone should know about probate, but we will focus on one particular facet of the process.
One of the responsibilities of the court is to determine the validity of the last will that has been presented. A person that creates a will is called the testator. In order for a will to be valid in the state of Ohio, the testator must sign it in front of two witnesses, and they must also sign in the presence of the testator.
Since the court must make a determination with regard to the legitimacy of the document during the probate process, anyone that wants to contest the will is allowed to make an argument.
In addition to the simple signatures, the state of mind of the testator is part of the equation. A party that is coming forward to question the validity of a will may contend that it is not valid because the decedent was not mentally competent when it was being put into place.
If this can be proven, it is an acceptable ground for a challenge. A will that is created through the imposition of undue influence, fraud, or forgery would be invalid as well.
Challenging the Terms of a Living Trust
A living trust is a very viable alternative to a last will as an asset transfer vehicle. When a living trust is used as the centerpiece of an estate plan, the probate court would not be involved. As a result, the same type of challenge could not be presented.
This being stated, if an interested party feels as though the trust terms can’t be consistent with the wishes of the decedent, a lawsuit could be filed. The estate contest process is more expensive and complicated this way, but there is potential recourse.
Many people will include a no-contest clause in a living trust to dissuade anyone from filing such a lawsuit. This clause would allow for the complete disinheritance of any beneficiary that initiates a lawsuit challenging the legitimacy of the trust.
The Value of Family Communication
When you are planning your estate, you would do well to consider the positive value of communication among family members and others to prevent misunderstandings.
You may make an inheritance distribution decision that will not be to the liking of someone that has certain expectations. This person could simply accept your final wishes after you are gone and walk away quietly. On the other hand, this dynamic can trigger estate challenges in some instances.
It is not always going to be the best course of action, because sometimes confidentiality has its place. However, if you communicate your estate planning decisions with people that will naturally have an interest while you are still alive, there will be no cause for misunderstandings later on.
Short of an actual formal contest or the filing of a lawsuit, a person that feels as though he or she has been treated unfairly can be disgruntled going forward. This can result in tension and acrimony within the family, and it can escalate to long-term estrangement.
It is possible that honest communication at a family meeting when your estate plan has been completed could prevent this type of situation. If your logic makes sense, reactions may be much different than they would be if there are unknown factors that fuel suspicions and resentment.
Attend a Free Estate Planning Workshop
Our attorneys are holding a series of workshops over the coming weeks that cover numerous different important estate planning and elder law topics. You can obtain a great deal of very useful information if you attend the session that fits into your schedule.
To get all the details, visit our seminar page and follow the simple instructions to register for the date that works for you.
Schedule a Consultation!
If you are ready to take direct action, we are here to help. You can send us a message to request a consultation appointment, and you can get in touch with us by phone at 513-721-1513.