Holland, OH asked in Estate Planning for Ohio

Q: My x=husband passed away and everything has been put in a trust. His biological daughter is not listed in the will.

His lawyer has sent her papers to sign saying she will not challenge the will. We don't know who is listed on the trust. Can she challenge the will and is she entitled to 1/2 of everything?

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2 Lawyer Answers
Nicholas P. Weiss
Nicholas P. Weiss
Answered
  • Estate Planning Lawyer
  • Cleveland Heights, OH
  • Licensed in Ohio

A: It really depends on how the will is drafted. The law in Ohio is that “a testator cannot, by any words of exclusion used in his will, disinherit one of his lawful heirs, in respect to property not disposed of by his will.” Crane v. Exrs. of Doty, 1 Ohio St. 279 (1853), syllabus. “[T]he heir at law can be disinherited only by a devise of the property to another.” Mathews v. Krisher, 59 Ohio St. 562, 574, 53 N.E. 52 (1899).

In English, this means that if the property was specifically provided to another, such as the trust, then the daughter is disinherited. If this was a pour-over will, i.e. one that puts all of his assets in trust, then she is likely disinherited.

This assumes that the will was executed correctly. If it was not, then the bequests are invalid, and the property passes from ordinary descent and distribution, and she would be entitled to take under the estate.

If she is a beneficiary under the trust, then she is entitled to a copy of the trust. I would ask to see the trust document before signing over a right to challenge the will.

Amy Turos
Amy Turos
PREMIUM
Answered
  • Estate Planning Lawyer
  • Kent, OH
  • Licensed in Ohio

A: There are very strict time restrictions if you wish to contest a Will. Its best to seek a legal consultation immediately.

Per Ohio Revised Code:

2107.76 Will contest action - time limits.

No person who has received or waived the right to receive the notice of the admission of a will to probate required by section 2107.19 of the Revised Code may commence an action permitted by section 2107.71 of the Revised Code to contest the validity of the will more than three months after the filing of the certificate described in division (A)(3) of section 2107.19 of the Revised Code. No other person may commence an action permitted by section 2107.71 of the Revised Code to contest the validity of the will more than three months after the initial filing of a certificate described in division (A)(3) of section 2107.19 of the Revised Code. A person under any legal disability nevertheless may commence an action permitted by section 2107.71 of the Revised Code to contest the validity of the will within three months after the disability is removed, but the rights saved shall not affect the rights of a purchaser, lessee, or encumbrancer for value in good faith and shall not impose any liability upon a fiduciary who has acted in good faith, or upon a person delivering or transferring property to any other person under authority of a will, whether or not the purchaser, lessee, encumbrancer, fiduciary, or other person had actual or constructive notice of the legal disability.

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