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Will Contests in Ohio - Frequently Asked Questions

If you expected an inheritance from a loved one but did not receive it, or received less than anticipated, you may have a good reason to challenge the deceased person's last will and testament. Challenging the validity of a will is commonly called a "will contest," and the person who created the will is called the "testator."

Who may contest a testator's will?

Anyone who would have benefited from the testator's estate if the will in question did not exist. The contestant must prove they would have inherited by either the testator's prior will, or by Ohio's intestacy laws if the testator had no prior will. If the contestant would not receive an inheritance from testator's prior will or from Ohio's intestacy laws, the contestant does not have standing to proceed with the lawsuit, and it will likely be dismissed.

When does a will contest need to be filed?

Within three months of either 1) the contestant's receipt of notice that the testator's will has been admitted to the probate court, or 2) the contestant's waiving notice that the testator's will has been admitted to probate. If the contestant didn't receive notice or waive notice, the time to bring the will contest is less clear.  Ohio's relevant law is silent on this issue.

What does the contestant need to prove?

The contestant must prove that the testator's will was either 1) improperly witnessed, 2) executed under undue influence, 3) executed without testamentary capacity, or 4) executed without knowledge of its contents.Note: In Ohio, wills are presumed to be valid upon their admission to probate.  The contestant bears the burden of proof in proving the will should not be enforced. 

How is a will properly witnessed?

Wills must be "attested to" and "subscribed by" by two competent witnesses. The witnesses must actually observe the testator sign the will (or alternatively, ask the testator to acknowledge their signature), must be disinterested (i.e. the witness should not be a beneficiary of the will), and must sign the will as a witness.

When is a will executed under undue influence?

Undue influence can be found where the testator is taken advantage of, either due to fraud, or duress.  In other words, the contestant must prove the testator was pressured to create a will they would not have made otherwise.

When does a testator lack testamentary capacity?

The testator will lack testamentary capacity if they did not understand they were signing a will, if they could not generally describe their family, or if they could not generally describe the nature and extent of their property.   Testamentary capacity and competency mean two very different things.For example, a testator who can identify their wife and only some of their children likely has testamentary capacity.  Similarly, a testator who can identify only some of their assets likely has testamentary capacity.  These standards are designed to encourage the creation and enforcement of wills.

When does a testator lack knowledge of the will's contents?

A testator will lack knowledge of the will's contents if the will distributes their property differently than they believed it did at the time of signing.Note: Proving the testator's beliefs at the time of signing is difficult, especially since the testator is likely deceased. 

If the testator's will is found invalid, do I inherit?

It depends. If the testator had previously executed another will, then this older will will describe how the assets will be distributed. If the testator's only will has been found invalid, Ohio's laws of intestacy will describe how the assets will be distributed.

What if the will disinherits me if I contest it?

Some wills contain provisions that disinherit individuals who contest its validity (sometimes called in terrorem clauses).  Ohio courts generally enforce these clauses.

What if the will is lost?

Lost wills are presumed to be revoked by the testator.  Accordingly, a contestant alleging a lost will must prove the testator's intent NOT to revoke it, and must also prove the lost will's contents.

How much does a will contest cost?

Attorneys typically charge a contingency fee to pursue will contest actions. In that arrangement, the attorney will typically take 1/3 of the assets the contestant recovers. Alternatively, the attorney may bill a flat fee, or proceed with an hourly rate.

Joint and Survivorship rights

Joint and survivorship property is property owned by two or more people, with a special feature: at the death of one of the co-owners, that interest passes to the surviving co-owner or co-owners.  For example, let's say three people, X, Y and Z are joint owners of a piece of property with survivorship rights.  In this situation, X, Y and Z each own a 1/3 interest in the property.  If X were to die, her interest would pass to Y and Z:  Y and Z would then each own 1/2 of the property as joint tenants with rights of survivorship.  Ohio law requires that this special right in property be created in a specific way.A useful feature of joint and survivorship property is that it does not need to pass through probate in order for it to transfer.  However, Ohio law requires certain steps to be taken in order for joint and survivor property to transfer to the surviving owners. This can be as simple as presenting a death certificate to the county auditor along with an affidavit drafted by an attorney.Another useful feature of joint and survivorship property is that it not only applies to deeds and real estate.  Joint and survivorship rights can be applied to vehicle titles, as well as bank and investment accounts.  Mineral rights can also take joint and survivor form.Please be aware that joint and survivorship rights are not always as beneficial as they may seem.  Conveyances made via joint and survivorship language can frequently trigger unfavorable tax consequences in the beneficiary.

Certificate of Transfer

When a real estate owner dies without a will, the Probate Court must determine to whom that real estate passes according to the laws of intestate succession.  Once the court determines the appropriate person to take the real estate, it will issue a certificate of transfer.  This document basically operates as a deed to the property, transferring the interests of the decedent to the appropriate heir or heirs.  But this does not happen automatically, and the administrator of the estate must apply specifically to the court to distribute the real estate in an Application for Certificate of Transfer for Real Property.  This application must be submitted to the court after submitting the inventory of the deceased person's assets, but before the estate's final accounting.

What is per stirpes? What is per capita?

Ohio's intestacy statutes identify who is entitled to take from a decedent's estate, and in what proportion.  Several of these provisions include an obscure legal term: per stirpes.  Per stirpes (and its counterpart, per capita), often show up in wills, as well.Per stirpes is latin for "by the branch" while per capita is latin for "by the head."  Despite these terms' obscurity, they bear heavily on the disposition of an individual's assets.  They are very much worth understanding,  and are best illustrated by way of an example.Per Stirpes Example:Husband marries Wife.  Husband and Wife have two children, A and B.  A has two children, X and Y.  B has no children.If A passes away, and Husband's will left his assets equally to his children per stirpes, A's children would each be entitled to 50% of A's share.So, if Husband's estate had $200, and A is no longer living, a per stirpes distribution would entitle B to $100, and A's $100 would be distributed equally to her children, X and Y, who would each receive $50 each.Per Capita Example:Husband marries Wife.  Husband and Wife have two children, A and B.  A has two children, X and Y.  B has no children.If A passes away, and Husband's will left his assets equally to his children per capita, A's children and B would share in Husband's estate in equal proportions.So, if Husband's estate had $200, and A is no longer living, a per capita distribution would entitle B to 1/3 of the $200, X to 1/3 of the $200 and Y to 1/3 of the $200.  X, Y and B would each receive $66.66.

Who are my heirs?

Many clients seek our legal services to help them draft a last will and testament that disposes of their property after they pass away.  In some circumstances, however, we may recommend that the client not draft a will, and instead have the Probate Court dispose of the client's property.  The reasons for this can be wide and varied, but most commonly involve an expectation that several disputes will arise after the client's death regarding who is to receive the assets.  The Probate Court will become involved even if an individual had a will when the will did not entirely dispose of the deceased person's property.In either case, the client wants to know: if I don't have a will, or if my will does not dispose of all of my property, where will my assets go?  How will the Probate Court dispose of my assets if I die intestate?  Another way of putting this is: how does Ohio identify my heirs?Ohio, like all states, has a series of laws that direct the Probate Court's distribution of a deceased person's property.  These eleven provisions contemplate families of all shapes and sizes, and require the court to distribute the deceased person's property in a specific order and to specific people.  Fortunately, the law is well-written and makes understanding the "pecking order" fairly easy to follow.Ohio Revised Code 2105.06 provides:A) If there is no surviving spouse, to the children of the intestate or their lineal descendants, per stirpes;B) If there is a spouse and one or more children of the decedent or their lineal descendants surviving, and all of the decedent's children who survive or have lineal descendants surviving also are children of the surviving spouse, then the whole to the surviving spouse;C) If there is a spouse and one child of the decedent or the child's lineal descendants surviving and the surviving spouse is not the natural or adoptive parent of the decedent's child, the first twenty thousand dollars plus one-half of the balance of the intestate estate to the spouse and the remainder to the child or the child's lineal descendants, per stirpes;D) If there is a spouse and more than one child or their lineal descendants surviving, 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 intestate estate to the spouse and the remainder to the children equally, or to the lineal descendants of any deceased child, per stirpes;E) If there are no children or their lineal descendants, then the whole to the surviving spouse;F) If there is no spouse and no children or their lineal descendants, to the parents of the intestate equally, or to the surviving parent;G) If there is no spouse, no children or their lineal descendants, and no parent surviving, to the brothers and sisters, whether of the whole or of the half blood of the intestate, or their lineal descendants, per stirpes;H) If there are no brothers or sisters or their lineal descendants, one-half to the paternal grandparents of the intestate equally, or to the survivor of them, and one-half to the maternal grandparents of the intestate equally, or to the survivor of them;I) If there is no paternal grandparent or no maternal grandparent, one-half to the lineal descendants of the deceased grandparents, per stirpes; if there are no such lineal descendants, then to the surviving grandparents or their lineal descendants, per stirpes; if there are no surviving grandparents or their lineal descendants, then to the next of kin of the intestate, provided there shall be no representation among the next of kin;J) If there are no next of kin, to stepchildren or their lineal descendants, per stirpes;K) If there are no stepchildren or their lineal descendants, escheat to the state.

Mineral Rights, Survivorship, and Probate

I am regularly surprised at how our estate planning practice overlaps with our oil and gas practice.   Lately I have helped a number of clients navigate the re-titling of an ancestor's mineral interest by working through the probate courts.  When an individual dies, the probate court takes all of the real property titled in the deceased person's name and determines the new owner.  The same is true of oil, gas, and mineral interests, as they are real property.This process is fairly straightforward if the individual had a will that clearly stated where they wanted these interests to go.  Even so, the probate court must approve of the transfer.  This can be a lengthy process and is subject to court costs and attorney's fees.Alternatively, the mineral interests can pass automatically if they are part of a deed containing survivorship language.  These deeds provide that when one of the landowners dies, their interest passes automatically to the remaining landowners.  This process avoids the probate court, but still requires some additional paperwork for it to be valid.Landowners seeking to reclaim abandoned mineral interests pursuant to Ohio's Dormant Minerals Act are also likely to deal with the probate court.  If a surface owner records a notice of their intent to declare a mineral interest abandoned, it puts the mineral owner's heirs on notice that they have to defend their title to the minerals.  Many times it is not clear just who the heirs of the mineral owner are.  A thorough search of the county's probate records can help identify them.  Our attorneys have frequently been called upon to conduct this research.Similarly, we often help clients "clean up" their title to a mineral interest they have inherited.  Oil and gas companies like to be 100% certain that the landowner who signs a lease actually owns their minerals.  To that end, they typically require a thorough title search showing with absolute certainty that this individual owns their minerals.  Regrettably, deeds and leases aren't always adequately drafted, and that can create confusion or uncertainty about someone's ownership of a mineral interest.  The lawyers in our firm draw on decades of experience with probate courts, as well as oil and gas law, and are very well-suited to resolving these issues.

Living Trusts

Many people mistakenly believe that they need to have a lot of money to benefit from a trust.  This couldn't be further from the truth.  In fact, many benefits trusts provide don't have anything to do with how much money someone has.  Trusts just make managing assets simpler, and operate a little differently than wills: the probate court ensures that an individual's will is followed, but the probate court has little to say regarding trust enforcement.Take a living trust, for instance.  Living trusts are created by a Settlor, for the benefit of named Beneficiaries, subject to the oversight of a Trustee.  Living trusts are revocable, which generally means they can be amended.  This makes living trusts an attractive vehicle to manage beneficiaries: it is quite easy to add/remove beneficiaries with a living trust.  Living trusts can also be an attractive asset-management vehicle for families with minor children.  Even if a will leaves several assets to a minor child, the probate court will typically withhold those assets until the child turns 18.  Assets left to a minor child under a living trust, by contrast, will pass to the child on the trust's own terms, which could be well before the child turns 18.Individuals with minor children, or individuals seeking to avoid what can often be a lengthy and expensive probate administration may benefit from a living trust.  We are very well-versed in the nuances of these documents and are well-equipped to draft them according to your family's specific needs.  Contact us today if you believe your family might benefit from establishing a living trust.