Wills and probate process misconceptions often result in litigation

On Behalf of | Mar 2, 2021 | Will Contests

An estimated 60% of the American population is aware of the need to have a will in place, yet research shows that only 40% have drafted one. One of the main reasons Americans don’t have wills is that they are misinformed about what happens if they don’t have one. These misconceptions often lead to contested cases.

Common misconceptions of would-be testators

Many individuals avoid drafting wills because they assume probate judges sort out who gets what when they die. While it’s true that the court ultimately decides what happens with an estate if a decedent passes away without a will, they follow a state’s intestate succession laws in doing so.

It’s also not uncommon for individuals to avoid drafting wills because they assume that the transfer of their property to a spouse, for example, is automatic. This outcome generally only happens when the homeowner tells their spouse, adult children or anyone else that they plan to deed their house to them and facilitate the transfer before their passing.

Another misconception that individuals have is what it takes to avoid the probate process. Some are under a false impression that all it takes to skip the probate process is to draft a will and appoint an executor to administer their estate. While setting up a trust may help testators avoid the probate process, simply drafting a will and appointing an executor does not.

One of the last misconceptions that individuals often have is that they can protect any assets they earmark for the others in their will from their creditors’ reach. One of the first steps executors must take is to settle up with a testator’s creditors. Executors may have to sell off a decedent’s assets to pay any of the testator’s outstanding debts. Thus, a beneficiary may not receive them. Trusts are the only asset protection tool that shields assets from creditors.

What to do when a misconception leads to litigation

Many will and trust disputes stem from Toledo residents making the wrong choices during the estate planning process. An Ohio probate litigation attorney can aid you in unraveling any potentially problematic wills or trust matters that lead to litigation.


FindLaw Network