Estate and Probate Attorney in Cincinnati Ohio » will contest

Will Contest

admin — Tue, 29 Mar 2011 09:00:56 +0000

Only certain people are allowed to contest a will. These people are said to have “standing” which means they have the legal right to bring an action. There are three groups of people included: people who are named in the will; named in a prior will; or heirs at law who would inherit if the will was found to be invalid. Thus, you cannot contest your neighbor’s will just because you don’t think it reflects your neighbor’s wishes.

There is a time limit on the filing of a will contest. Under Ohio law a will contest must be filed within three months after the filing of the certificate in the Court indicating everyone entitled to notice has received notice or has waived notice.

A will contest is filed in Probate Court indicating the grounds for the contest. The person who is contesting the will must prove:

The will was improperly created or modified,
The person was otherwise unduly influenced,
The person was not mentally capacity at the time the will was signed,
Improper witnessing or signing of the will,
The will was created by some sort of fraud, or
There is a more current will than the one filed

Ohio requires that such evidence be presented through the same process in which other civil actions are pursued, including the right to a jury trial. The will contest can be brought before a judge or a jury.

Notice to the Heirs

admin — Tue, 29 Mar 2011 08:34:56 +0000

In order to give each beneficiary of the will and the heirs at law the opportunity to contest the will, each has to receive a copy of the will by certified mail or must waive notice in writing. Once all have received notice or waived notice of the filing of the will, the three month will contest period starts. If the will is not contested within this time period, it is valid.

Filing of the Will

admin — Tue, 29 Mar 2011 08:34:17 +0000

The first step to open probate is to file the will. There is a presumption that the will is valid. A list of all of the people named in the will and a list of all of the people who would inherit under Ohio Law if the will was contested and found not to be invalid is also filed with the will. These people have an interest or standing in proving that the will is valid or not depending on which side the heir or potential heir might be on.

To be valid, the will must be:

in writing
testator must be at least 18 years old
testator must be of sound mind and not coerced
signed at the end by the testator
two witnesses must attest the will

As an example, I am a child of the decedent and have been excluded from my dad’s will. I file a will contest, because I believe my dad was not competent at the time he signed his will. If I am successful and the will is thrown out by the Court, then I inherit a share of his estate as an heir at law.

What Are the Steps of Probate?

admin — Tue, 29 Mar 2011 08:29:06 +0000

The steps of going through probate include the following:

File the will with the probate court
Send notice of the filing of the will to all persons listed in the will and those who would inherit if there was no will or the will was invalid
Have the executor (or administrator when there no will) appointed. Once appointed, the Probate Court issues a court order called “Letters of Authority”
Appraise and value the assets
File an inventory listing the assets in the probate estate
Send notice of the filing of the inventory to the heirs
Have a hearing if any beneficiaries object to the inventory
Sell assets as needed to pay debts
Resolve will contests, if any
Resolve creditor claims, if any
File estate tax returns
Transfer and distribute assets to the heirs
File a final account showing all distributions from the estate

What is the Probate Process?

admin — Tue, 29 Mar 2011 08:28:10 +0000

Probate Court supervises the process of administering someone’s estate once they have died. If the person died with a will, the Court accepts the will and appoints the executor. If there is no will, the Court appoints an administrator. The Court supervises the opening of the estate, the filing of the inventory, and the closing of the estate.

The Court deals with will contest, estate litigation, creditor issues, and other problems that might arise in the administration.

The Court makes sure the executor follows the terms of the will or the law in distributing the estate to the heirs. The Court requires notice and has hearing at each of the major steps to allow objecting parties to have their day in Court.