Seek legal counsel when preparing will, estate plan | Estate Planning

When it comes time to create a will or estate plan, digging through assets can dig up familial concerns. Through attorney-prepared wills and estate plans, no-contest clauses, probate court validations and more, the fear of a family member contesting a will or estate plan can be lessened.

Amanda M. Buzo, attorney and shareholder at Hickman Lowder Lidrbauch & Welch, Co., L.P.A. in Independence and Jennifer R. Hallos, principal attorney at McCarthy Lebit Crystal Liffman Co., LPA in Cleveland, both recommend working with an experienced attorney from start to finish when writing a will or estate plan, especially in case of concerns of family members contesting a will.

“My recommendation is to always work with an experienced attorney to prepare a will,” Buzo said. “Not only can an experienced attorney help ensure your will accurately reflects your wishes, but working with an attorney should result in a will that includes necessary legal terms and is executed correctly according to Ohio law.”

Hallos said, “Without a lawyer who’s knowledgeable in those areas, you know, it can get very, very messy and very, very costly. I tend to tell clients that it’s a heck of a lot cheaper to get it done correctly the first time than not doing anything or trying to do it by yourself. And frankly, a bad plan can cost tens of thousands of dollars in cleanup.”

While there is no way to guarantee that there will not be a will contest, there are aspects which can further protect the will’s proper execution.

“The attorney may recommend including a no-contest clause which states that any party who challenges the will forfeits their right to a share of the estate,” Buzo said.

Hallos said the no-contest clause can act as a good deterrent for will contests, comparing the clause to the phrase, “you get what you get, and you don’t throw a fit.” The clause is a beneficial aspect to include if the testator, or person who created the will, expects there to be a disagreement from the beneficiaries.

While some disagreements may be unavoidable, Buzo tries to counsel her clients while writing plans, to avoid costly legal fees for the family down the line.

“One approach which may be emotionally challenging but not cost money is if the testator explains their intentions with their family in advance of their death,” Buzo said. “For example, if my client plans to disinherit a family member or decides to treat their children unequally, I may counsel my client to discuss their reasoning with their loved ones and not allow it to be a surprise after their death.”

Similarly, Hallos recommends including “anything you think people may fight over,” in estate plans to avoid disagreements.

“It’s usually tied to things with sentimental value,” Hallos said. “ So think of any family heirlooms or a wedding band or engagement ring. If there’s one wedding band or one engagement ring and there’s multiple children – if they’re being all treated the same for the financial assets – we don’t want them fighting over the stuff. So I like to be specific on the sentimental assets, but more general and think of the percentage in terms of the financial assets.”

Ohio law permits a wide range of people to initiate a will contest, according to Buzo, such as beneficiaries named on the will, family members who would inherit under Ohio law if there was no will, the executor, the attorney or “other interested parties.”

Additionally, Buzo said there is a wide range of allegations which can be included in a will contest, including testamentary capacity – the person did not have the ability to understand the will they were signing – undue influence – someone in a position of trust or influence coerced the person to sign the will – fraud, forgery and improper execution.

With these aspects in mind, Buzo recommends an additional precaution.

“The attorney may also advise taking other steps, such as asking the probate court to validate the will while the testator is still living, completely avoiding probate at the client’s death so there is no reason to contest the will, or recording the signing meeting,” Buzo said.

Should the will executor be served with a complaint, Hallos said steps “A through Z are called a lawyer.” Hallos said that most lawyers will give a free consultation.

“It never hurts to at least get that first opinion of what your options are and how you can possibly proceed,” Hallos said. “Then if you decide not to go with a lawyer, you have at least taken the time to understand what some of your options are.”

Jane Matousek is a student at Cleveland State University and is Editor-In-Chief for the student newspaper, The Cleveland Stater.