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.

When a person dies without a will their personal property and real estate is distributed as follows:

Before we start with the rules, the definition of per stirpes must be defined. “Per stirpes” means “by representation”.  If any heir dies, before the decedent in question and is survived by children, they move up the family tree and take their parent’s spot.  For example, the heirs of an estate are A, B, and C.  If A and B are living and C predeceased the decedent, but leaves two children Y and Z, they take C’s place.  Thus, the estate would pass one-third to A, one-third to B, and one-third shared by Y and Z.  This concept of per stirpes is contained numerous times below.

(A)         No spouse with children. The whole estate is divided between or among the living children per stripe.  

(B)       Surviving spouse and children where the children are from both parents.  The whole estate goes to the surviving spouse.

(C)       Surviving spouse and one stepchild of the surviving spouse. The surviving spouse receives the first twenty thousand dollars plus one-half of the balance of the estate and the remainder to the stepchild per stirpes;

(D)       Surviving spouse and two or more stepchildren of the surviving spouse. The surviving spouse receives the first sixty thousand dollars if the spouse is the natural or adoptive parent of one, but not all, of the children, or the first twenty thousand dollars if the spouse is the natural or adoptive parent of none of the children, plus one-third of the balance of the estate to the spouse and the remainder to the children equally, per stirpes; For example, if the spouse has at least one child from the decedent, they get $60,000 plus one-third.  If not, then the surviving spouse gets $20,000 and one-third.  The children would share two-thirds;

(E)       Surviving spouse no children or grandchildren. The surviving spouse receives the whole estate;

(F)       No spouse, children or grandchildren.  The estate goes to the deceased person’s parents or surviving parent;

(G) No spouse, children, grandchildren or parents. The estate passes to the deceased person’s brothers and sisters, whether of the whole or of the half blood of the deceased per stirpes;

(H)       No brothers, sisters, nieces, or nephews. The estate would pass one-half to the paternal grandparents of the deceased equally, or to the survivor of them per stirpes, and one-half to the maternal grandparents of the deceased equally, or to the survivor of them per stirpes;

(I)         No grandparents. The estate would filter out one-half to the aunts, uncles or cousins on one side per stirpes and one half to the other side per stirpes.  If none of these people exist, then to the next of kin of the deceased;

(J)        No next of kin. The estate passes to the step children per stirpes.

(K)       Nobody. The estate passes to the State of Ohio.

The executor/administrator also agrees to:

• Give notice of the admission of the will to the heirs and beneficiaries
• Make and file an inventory with the Probate Court
• Deposit all funds in an estate account and to keep all records
• Keep estate funds separate
• Invest all funds in a lawful manner
• Make and file a distributive and final account with the Probate Court
• File all tax documents required by law
• Maintain insurance on the estate assets
• Obey all Court orders

The Probate Court issues the executor “Letters of Authority”.  This is an official Court order certified by Probate Court that the person named is the executor of the estate.  The executor uses this Letter of Authority to transact business on behalf of the estate.  The executor can close bank accounts, sell assets, pay bills, and do all things necessary to administer the estate in accordance with the terms of the will.

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.

There are three levels of probate.  They are based on the dollar value of the assets that are going through probate.  The three levels are as follows.

Summary Release – The estate can be paid to the person who paid the funeral bill as long as the estate is less than $5,000 or the cost of the funeral, whichever is less.  Thus, if the bank account is $3,500 and the funeral bill is $1,500, then you have to do a Relief from Administration.  If there is a surviving spouse, a Summary Relief may be granted for an estate not exceeding $40,000 plus $5,000 for the funeral bill.

Relief From Administration – You can apply to have the estate relieved from administration if the probate assets are less than $35,000 payable to a non-spouse and $100,000 payable to a spouse.  You file an Application for Relief From Administration and the court will issue an order allowing the relief and appointing someone as commissioner to collect the assets.  This is considered a small estate procedure.

Full Administration – All other estates must do a full administration which includes appointment of the executor/administrator, filing of the inventory, waiting for the will contest period and creditor claim period to expire, and the filing of an account with the court.

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.

In your will, you can identify where your property goes upon your passing.  You can be specific as to which assets passes to which beneficiary.  For example, “I want my house on Main Street to go to my brother, Steve”.  You can also be general as in “The remainder of my estate shall be distributed equally to my two children”.  You can create second levels of beneficiary such as “I want my Procter and Gamble stock to go to my sister, Betty if living and if not to my nephew, Tom”.

The executor named in a will is the person or entity that will conduct business on behalf of your estate.  They are appointed by the Probate Court and will have legal authority to sell you assets, pay your bills, file your taxes, and to make distributions as indicated in your will.  The executor can be a person like your spouse, child, or brother.  The executor can also be a bank or Trust company.  The executor has a fiduciary duty to follow the terms of your will and Probate Court supervises the process.

The guardian named in your will becomes responsible for your children who are under the age of 18.  The guardian exercises parental control and has the same parental power as if they were in fact the parent.  In Ohio you may name a parent, sibling, or friend not related to you or the child.  Ohio allows out of state guardians to be appointed.