the common motivation for doing so is to "take care of" loved
ones. But too often the testator may construe "taking care of"
only in terms of an inheritance via the last will. Note again that
(1) property inherited either as the result of a provision in a
last will or under Ohio's Statute of Descent and Distribution is
by definition "probate property;" and (2) an significant
assortment of filings must be made by the estate's executor
to the probate court for all probate property. In contrast, when
the ownership of property passes to someone after the death
of the original owner, and the recipient's right of inheritance
is determined by something other than either the decedent's
last will or statute, then that property is by definition "non-
probate property." Non-probate property is by far the more
preferable. Note too that, as a general rule, property given
away during one's lifetime is not part of the estate at all.
Avoiding probate administration saves not only time and,
often, money, but also a great deal of aggravation during a
period when the emotional energy of surviving family, friends,
and associates is already strained. When there are few or no
estate assets requiring the court's supervision, a decedent's
estate can be "released" from a "full" probate administration.
Moreover, as a rule, non-probate property (regardless of the
amount) is neither subject to claims against the estate by
general and unsecured creditors (e.g., VISA, Master Card),
nor affected by a "will contest," such as where a disgruntled
family member challenges the validity of the last will or
asserts an objection to a particular provision in the
document. All of these results stand regardless of the value
or kind of non- probate property included in a decedent's
taxable estate.
Therefore, generally, a more pragmatic approach to estate
planning is to utilize other means to "take care of" surviving
family, friends, and associates. Collectively, these various
strategies are known as "will substitutes" because they
supersede the last will's distribution provisions as well as
overcome many of its other shortcomings.
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