Ohio residents who fear that their estate plans will not be welcomed warmly by some of their heirs may wish to consider placing their assets in a living trust rather than drafting a last will and testament. Living trusts, like wills, allow assets to be transferred according to the wishes of the maker, but they provide a number of benefits that wills do not. Trusts are more flexible than wills, and they allow estates to avoid the public scrutiny of the probate process. Living trusts may also be more robust than wills when contested by unhappy heirs.

The challenges mounted by heirs dissatisfied with the terms of a will or trust usually involve claims that the documents are invalid because of some sort of lack of capacity. This means that the maker was either not of sound mind at the time the document was signed or was somehow coerced into signing it. These accusations often hinge on claims that the person was unduly influenced by a loved one to implement an unfair estate plan or change the provisions of an existing plan.

Living trusts may be better able to withstand this type of legal scrutiny. While wills only become effective when the testator passes away, living trusts go into effect while the settlor is still alive still alive. If they are contested prior to the settlor’s death, the settlor can appear in court to explain their motives and make their intentions clear.

Experienced estate planning attorneys may recommend that their clients take proactive steps when it appears likely that their wishes will be contested. Attorneys could advise clients in this situation to discuss their estate plans with non-interested third parties and then document these conversations.

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