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Get Started On Your Will Now
A will is a writing that says how you want to have your property distributed upon your death. Anyone age 18 years old or older, of sound mind, and not under undue influence, may make a will in Ohio. To be valid, a will (usually) must be in writing, dated and signed. A will must be witnessed by at least two people who are not beneficiaries under the will. The execution of the will must be done in a special manner provided by law, and it must be executed in strict accordance with the law. The best way to ensure that a will is signed and witnessed properly is to have an attorney draft the will and supervise its signing.
You may change your will as often as you wish. You may change your entire will or you may change part of it. You should have your will reviewed if there are changes in your life. Examples could include a marriage, birth of children, a divorce, changes in the nature or value of your estate, or if there are changes in the law. To avoid potential problems you should not make changes without the assistance of an attorney.
A properly executed will is valid as long as it is not revoked. Signing a new will automatically revokes any older will. You can also revoke a will by destroying it with the intention of revoking it. However you should not merely revoke a will without preparing a new will to direct how you want your assets transferred.
Generally it costs more to administer an estate when you leave no will than it costs to administer an estate when there is a will. When there is a will, the executor distributes your probate property consistent with your wishes specified in your will. When there is no will, the probate court will direct that your assets be distributed based upon provisions of Ohio law. In either case, the probate court in the county in which you were domiciled will supervise the probate administration. A will may reduce administration expenses in significant ways. An example might be waiving the requirement of a fiduciary bond for the executor. A will may also grant specific powers to an executor such as the power to sell property without requiring additional probate court intervention.
Virtually everyone over 18 years of age should have a will. This is true regardless of the value of your assets. Keep in mind the purpose of the will is to ensure that the property is distributed the way you want it to be distributed, regardless of its value. Also your estate may grow in value almost unnoticed through, for example, the repayment of debt, appreciation of assets, or gifts or inheritances from relatives.
Ohio law gives surviving spouse significant rights over property that cannot be defeated by a will. These surviving spouse rights are covered in a separate topic on our website.
Property held in the names of more than one person in a survivorship form should automatically pass to the survivor upon the death of the other owner. Property held jointly without rights of survivorship will require the decedents’ portion of the property to go through probate for distribution. However, some forms of ownership allow property to pass automatically to the survivor or to a designated beneficiary upon the owners’ death. An estate planning attorney can help you plan the best way or combination of ways to own property.
The state of Ohio eliminated its Ohio Estate Tax for decedents dying on or after January 1, 2013. The Federal Estate tax exemption amount was also raised to over $5,000,000 (and more of there is a surviving spouse). Therefore most estates in Ohio do not need to be concerned with estate tax issues. However, if your assets are large the use of tax-planning techniques, including a properly drafted will may help reduce the amount of taxes that have to be paid after your death. A skilled estate-planning attorney can help draft your estate plan to minimize or avoid estate taxes.
If you die without a will you are said to have died “intestate”. In that case your probate property will be distributed to your nearest family members according to a law passed by the Ohio legislature. In other words, if you do not make a will, you cannot control who will receive your probate property. You also cannot choose who the court will appoint to administer your estate. These laws of intestacy are covered in a separate topic on our website.
If you draft a will, you may name the person you want to manage the administration of your estate (called the executor). If you die without a will, the probate court will appoint someone (called the administrator), to manage the administration of your estate. You may or may not know the person the court appoints. To control who will be handling your affairs after your death it is crucial that you have a will.
It is extremely important that you have the correct beneficiary/beneficiaries named on any life insurance policy. If you have named an individual or more than one individual or any charity the will has no effect on the distribution of the insurance proceeds. If the policy is payable to the estate of the insured or if the policy does not list a surviving named beneficiary, the disposition of the proceeds may be directed by a will. This would, however, subject the proceeds to the administration by the probate court. Most people would prefer having these proceeds paid immediately to their beneficiaries and not going through a probate process. You should consult an attorney and a qualified life insurance counselor to ensure the proceeds of your life insurance policy will be handled according to your wishes.
The drafting of a will requires professional judgment. An estate planning attorney can help ensure your wishes are carried out consistent with your desires in an efficient way to save time and money.