Probate Disputes Attorney
in Columbus, Ohio

Well-written wills and trusts are designed to allow their creators to express their wishes regarding the distribution of their estates when they die. These documents should take the guesswork out of what happens, combating the uncertainty inherent in an intestate estate.

Despite the existence of a will or trust, those instruments can be challenged by those who question the validity of the document. Although it is estimated that only one will out of every 100 filed with the probate court is challenged, it does happen. Depending on the size of the estate, the implications of disputes can be financially significant. If you want to challenge a will or trust, or if you find yourself embroiled in a challenge, you may want to know how probate disputes work.

I not only help clients in Columbus and throughout Central Ohio create their estate plans, but I also represent clients who want to mount probate disputes or defend against them.

How Probate Works in Ohio

The probate process in Ohio serves to pay the debts and taxes owed by a decedent and distribute any of the decedent’s assets subject to probate to the beneficiaries of the estate named in a will or to the heirs of the estate under Ohio law.

The personal representative named in the will administers the estate, beginning with filing the will with the probate court. Once the will is filed, a notice must be published advising anyone who may have an interest in the estate that the estate has been opened. This may include notice to creditors, heirs, and other individuals. 

Upon the filing of the will, its contents become a matter of public record. Therefore, anyone with an interest in the estate who reads the will and questions its validity for any reason may file a motion to challenge the will.

Trusts are not subject to probate because assets in the trust are the property of the trust, not of the decedent. Because they are not subject to probate, trusts do not become a matter of public record. Any beneficiaries named in the trust, however, are entitled to read the trust documents. Because only the beneficiaries and the trustee have access to the trust documents, only they can challenge the trust.

Common Probate Disputes

Contesting a will in probate or contesting a trust is based on doubt about the validity of the documents and their contents. Common disputes include:

• The decedent was unduly influenced or coerced by someone who manipulated the creator, convincing them to insert or remove certain content, such as who the beneficiaries are and what assets they receive.

• The document is fraudulent or forged and was not created by the decedent.

• The decedent was not of legal age (18) to create a will or trust or was not an emancipated minor.

• The content of the will or trust does not comply with Ohio law because it does not expressly identify the creator, contains no substantive clauses regarding the disposition of the estate or trust, or does not name an executor (in the case of a will) or a trustee other than the decedent (in the case of a trust).

• The decedent was not of sound mind at the time the will was created and signed. The decedent lacked the mental capacity or the ability to understand the purpose of the document and its implications.

• The document is improperly witnessed, notarized, or otherwise executed as required by law.

• The document was created under the laws of another state despite the fact that the decedent’s permanent residency was in Ohio.

Probate Dispute Process in Ohio

A person with an interest in the estate of a decedent may file a motion to challenge a will with the probate court. The motion must be filed within three months of the opening of the estate and must contain the grounds for contesting the will. Compelling evidence supporting the grounds for the challenge will need to be presented in court, and the estate will have the opportunity to refute such evidence and present evidence supporting the validity of the will. The probate judge will be the arbiter of the dispute.

To dispute a trust, a challenge must be filed with the court as well. Challenging a trust is more involved. First, a trust is usually a more complex and lengthier document. Second, the trust – particularly a revocable trust – might have been revised multiple times during the creator’s life. Successfully challenging a trust will require a thorough review of each and every version of the trust over time. Once a challenge motion is accepted by the court, however, the challenger is entitled to discover all reasonable documents and evidence under the law.

Wills and trusts often include a “no-contest” clause. A creator may include the clause to discourage challenges, especially if they anticipate there will be challenges raised by disgruntled heirs. Of course, if the will or trust is forged or fraudulent, the person who creates the document may include the clause for the same reason.

A no-contest clause usually states that a beneficiary who challenges the will or trust forfeits any right to inherit or benefit because they raised the challenge.

Although probate disputes are relatively rare, they are contentious and often complex when raised. Challenges greatly lengthen the time it takes to settle an estate and costs the estate more money to defend. The burden of proof required to successfully challenge a will or trust is a heavy one. Whether you want to challenge an estate or defend it, you should work with an experienced probate disputes attorney.