In Ohio, a person typically has three months to contest a will. The person must have received notice of the admission of the will to probate, meaning the will was filed in the probate court. Alternatively, the person must have waived the right to receive such notice.
The person has three months after the filing of the certificate of giving notice or waiver of notice to file a will contest with the probate court. If they suffered a legal disability during that three months that did not allow them to act, they have an additional three months to contest the will. This additional three months starts after they regain the ability to file a will contest.
How to Contest a Will in Ohio
A person who is interested in a will that was admitted to probate and the will has not yet been declared valid by judgment of a court can contest the will. Only a person with a financial interest in the estate can challenge a will.
This means the contestant must be a legal heir – a person set to inherit, but who was not named in the will. They can also be an heir or beneficiary, with the latter meaning a party set to inherit under the will, who was given less than what they believed they should get.
A person contests a will by filing a complaint in the Ohio probate court in the county where the will was filed. There is a cost to filing a complaint, which varies according to the county. For example, in Ashtabula County, the fee is $125, plus $10 for each certified mail service. In Franklin County, the fee is $123, with service to up to three defendants and/or addresses.
Concerns Regarding Criminal Actions
A person may have reason to believe that another party engaged in a criminal act to invalidate a will. For example, they may think a relative forged the testator’s name on the will. In such a case, the person should then file a police report regarding the alleged crime.
If a criminal court convicts the relative of forgery, the person can introduce the conviction as evidence that the will was forged. The person bringing the will contest can request that the probate court pause the probate case until the related criminal case is resolved. The judge in the probate court will determine whether to stay the case.
How the Trial Works
A trial regarding a will contest pauses the distribution of assets from the estate. During a trial in probate court, the judge hears evidence from the parties to the lawsuit. These include the party who brought the will contest, referred to as the plaintiff, as well as the party who filed the will in probate court. That party will likely be the one to defend the will and claim it is valid.
The judge will hear evidence from both sides. The Ohio Rules of Civil Procedure govern because probate court is a type of civil court.
A trial may be preceded by hearings, in which the parties can request that the court hear arguments on motions. For example, the party that introduced the will may file a motion to suppress physical evidence found in the bedroom of the testator, the person who created the will. The court would likely rule on this motion before scheduling a trial because the outcome of the motion would determine what evidence could be introduced at trial.
In Terrorem Clause
A testator can insert an “in terrorem” or “no contest” clause into the will. This clause will prevent a party who contests the will from taking under the will. If a party is successful in the will contest, the in terrorem clause will not apply, and the contestant will take their share under the will.
Grounds to Contest a Will
A beneficiary or heir can have one or multiple legal grounds to contest the validity of a will. These include:
- Undue influence: A person exerted extreme pressure upon the testator to cause them to change their will. For example, a cousin who had been driving an elderly person to their doctor’s appointments threatened to stop doing so unless the relative included them in the will; this would constitute undue influence.
- Mistake: The testator signed the will by mistake. For example, they meant to sign a home warranty policy but signed the will instead. This would invalidate the will. The person bringing a will contest can state under oath before the court that at the time the testator signed the document, they made statements that showed they thought the document was a home warranty policy rather than a will.
- Fraud: A person engaged in a fraudulent act to get the testator to sign or alter a will. For example, they asked a testator to sign a contract for home repair, but the document was in fact a will, worded in a tricky way so as to confuse the testator as to the document’s contents; this would constitute fraud.
- Forgery: Someone forged the signature of the testator or another person, like a witness, on a will.
- Revocation: The testator revoked the will by destroying it or requesting that another party destroy it in the testator’s presence.
- Lack of testamentary capacity: The testator was not of sound mind when they created the will. Lack of mental capacity could involve the testator not understanding the parties to which the will conveyed property or what property the will conveyed.
- Will is invalid: The document purported to be a will but did not meet the legal requirements set by Ohio law for a will.
Requirements for an Ohio Will
In Ohio, a will must fulfill all of these requirements:
- All wills except oral wills must be in writing. A handwritten or typewritten will counts as a written will.
- Will must be signed at the end by the testator. Alternatively, the will may be signed by another person in the testator’s conscious presence and at the testator’s express direction.
- Testator must be 18 years of age or older.
- Testator must be of sound mind and memory.
- Person who is under restraint may not make a valid will.
- Will must be attested to (verified that it is valid) and subscribed (signed by) two or more competent witnesses in the conscious presence of the testator.
The witnesses must have seen the testator sign the will or heard the testator acknowledge the testator’s signature. Here, “competent” means that the witnesses understood what was occurring and are not set to receive property under the will.
The term “conscious presence” means within the range of any of the testator’s senses. The term excludes the sense of sight or sound that is sensed by telephonic, electronic or other distant communications. For example, a witness could not sign the will on video in front of the testator and be counted as one of the two competent witnesses.
Law Firm Fees for Challenging a Will
A person can contest a will without an attorney, and they are not entitled to a court-appointed attorney for a will contest. An private attorney may request payment as a flat fee, a single fee to take the whole case; an hourly rate; or a contingency fee, a certain amount of the client’s recovery of assets.
The attorney’s rate depends on the complexity of the will challenge, such as how much work it involves, the attorney’s level of experience and the geographic area. A will contestant should look for an attorney in estate planning who has experience with will contests.
Non-probate Assets in Ohio
When a testator dies, an heir or beneficiary may not receive all of the assets through the will. Instead, a loved one may receive assets through non-probate means, such as a joint bank account, a trust or an insurance policy. The terms of the account or policy govern the distribution of the assets.
Ohio Intestacy Statutes
If a will is found to be invalid, the probate court will distribute the estate as if there were no will. This means the assets are distributed according to Ohio intestacy statutes. If the deceased person did not leave a surviving spouse, the estate passes to the decedent’s children or to the decedent’s lineal descendants, per stirpes.
The term “per stirpes” means “by branch,” or in equal shares to each member of the class. The share of a deceased member is divided proportionately among their beneficiaries, such as their children.
For example, if a decedent did not leave a surviving spouse, but had three children, two of whom survived the decedent. The third child predeceased the decedent. The predeceased child had two children. This means the estate would be divided into thirds, with one-third going to each of the decedent’s surviving children. The remaining third would be split by the decedent’s surviving grandchildren who would each get one-sixth of the estate assets.
Spouse and One Surviving Child
If the decedent left a surviving spouse and one or more children or lineal descendants who survived them, and all of the decedent’s surviving children or surviving lineal descendants are also children of the surviving spouse, the whole of the estate goes to the surviving spouse.
If the decedent had a surviving spouse and one surviving child or surviving lineal descendants of the child, and the surviving spouse is not the natural or adoptive parent of the decedent’s child, the spouse receives the first $20,000 plus one-half of the balance of the decedent’s estate. The remainder of the estate goes to the surviving child or the child’s lineal descendants, per stirpes.
Spouse and More than One Child
If the decedent had a surviving spouse and more than one child or their lineal descendants surviving, the spouse receives the first $60,000 if they are the natural or adoptive parent of one but not all of the children.
Alternatively, the spouse receives the first $20,000, plus one-third of the estate if they are the natural or adoptive parent of none of the children. The remainder goes to the children equally or to the lineal descendants of any child that predeceased the decedent, per stirpes.
Spouse and No Children
If the decedent had no children or lineal descendants, then all of the decedent’s estate goes to the surviving spouse. If the decedent had no spouse and no children or lineal descendants, the decedent’s estate goes to the parents of the decedent in equal shares. If the decedent had only one surviving parent, the decedent’s estate goes to that parent.
Ohio Estate with No Spouse or Children
If the decedent had no spouse, no children or lineal descendants and no surviving parent, the decedent’s estate goes to the brothers and sisters of the decedent. This is true whether the siblings are of whole or half blood, or the siblings predeceased the decedent and the property goes to the siblings’ lineal descendants, per stirpes.
Ohio Laws & Administrative Rules contains further information on distribution if other family members like grandparents survived the decedent, the decedent’s parents and the decedent’s siblings.
- Ohio Laws & Administrative Rules: Section 2107.76, Will contest action - time limits
- Ashtabula County Court of Common Pleas, Probate Division, Ohio: Fee schedule
- Ohio Laws & Administrative Rules: Section 2107.71, Civil action to contest validity of will
- Ohio Laws & Administrative Rules: Section 5817.10, Declaration of validity
- Franklin County Municipal Court, Ohio: Civil and small claims court fees
- Ohio Laws & Administrative Rules: Section 2107.33, Revocation of will
- Ohio Laws & Administrative Rules: Section 2107.03, Method of making will
- Ohio Laws & Administrative Rules: Section 2107.2, Who may make will
- Ohio Laws & Administrative Rules: Section 2105.06, Statute of descent and distribution
- Ohio Supreme Court: Ohio rules of civil procedure
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.