Avoiding Will Contests (and trusts too)

If an estate plan omits one of the children or other next of kin who would normally inherit, there is an incentive and possibility they may file a Will contest action or other litigation. Ohio law does require an official notice of the filing of the Will in Probate Court to all of the next of kin even if they are not named in the Will as a beneficiary. A Will contest or other litigation will delay the probate of the estate for years, incur large bills for attorney fees and court costs, and create acrimony among the family. There are legal procedures that can be taken to avoid these possible problems and assure that the intention expressed in the Will is carried out.

One of the planning options that is provided under Ohio law is to file for a Judicial Declaration of the Validity of your Will by the Probate Court. Most states do not have this type of law. This involves filing a petition in court, a notice sent to all the legal next of kin and appearance at a court hearing. At the hearing, the person who signed the will testifies before the judge who can then declare the will to be valid. The effect of this court decree is that all the persons named in the will and others not named who were notified of the court action are legally prohibited from contesting the will. The disadvantage of this option is that it does incur some additional legal fees and you have to notify the persons who will not be inheriting under the will. However, the result is well worth avoiding expensive and protracted litigation in the estate.

A new development in this area is that a similar Ohio law has been enacted, effective in March of 2019, to provide for the same judicial procedure for a trust. Many persons use trusts to avoid probate and for many other estate planning objectives. For a fuller discussion of trusts see  http://www.michaelmillonig.com/practice-areas/trusts/