What is a will?
A will is a document that sets forth how a person's probate property will be
distributed upon death. To be valid, a will must meet certain formal
requirements as provided by appropriate state laws.
Who may make a will?
Any person who is at least 18 years old and of sound mind may make a will in
Ohio.
How is a will made?
With limited exceptions, a will must be written and signed. A will must be
witnessed by at least two persons in a special manner provided by law, and it
must be executed in strict accordance with the law. The easiest way to ensure
that these conditions are met is to have the signing of the will supervised by
an attorney.
May a will be changed?
A will may be changed as often as the person who wrote it wishes. Changes are
frequently made by the simple device of an addition called a codicil.
Changes to a will often result from changes in circumstances after a will has
been made, such as tax law changes, marriage, birth of children, divorce or even
a substantial change in the nature or amount of a person's estate. All changes
in circumstances require careful analysis and reconsideration of all provisions
of a will and may make it advisable to change the will to reflect the new
situation. However, changes should not be made without the assistance and advice
of a lawyer to ensure changes will be valid and will not adversely affect other
portions of the will.
How long does a will last?
A will is effective as long as it is not revoked. A will is most often revoked
by the execution of a new will or codicil replacing the old, or when the person
who made the will destroys it with the intent of revoking it.
Does a will increase probate expense?
No. It costs no more to administer an estate when a decedent leaves a will than
when there is no will. Often it will cost less. When there is a will, the
executor distributes the estate to the parties named in it. When there is no
will, the probate court must determine who the legal heirs are and then
distribute the estate to them. In either case, administration under the
supervision of the probate court is necessary.
A will may reduce expenses of administration in a number of ways. A will can
reduce taxes and expenses by taking advantage of the charitable or
marital deduction provisions of federal and Ohio estate tax laws. In many
situations, a will can also reduce costs by waiving the requirement of a
fiduciary bond for the executor. These examples illustrate that a will can save
money for you and your family if it is drafted by a lawyer who is trained in
this area of the law.
How large an estate is necessary to justify a will?
Everyone who owns any real or personal property should have a will regardless of
the present amount of the estate. Remember that a will provides for the way that
a person's probate property will be distributed upon death, regardless of size
and value. Further, estates grow in value almost unnoticed through the
repayment of mortgages, appreciation of stocks and other investments,
inheritances from relatives, and other sources.
May I dispose of my property to any person or entity I choose under my will?
Yes. However, Ohio law gives a surviving spouse and minor children certain
rights over property that cannot be defeated by a will. Talk to a lawyer about
these rights.
What happens to property held in the names of both husband and wife?
Property held in the names of both husband and wife may not automatically pass
to the survivor upon the death of one of them. However, there are some forms of
ownership in which property does pass to the survivor automatically. Sometimes
it is to your advantage to hold property in this manner. Other times it can be
disadvantageous. An attorney can advise you as to the type of property that can
be held in joint tenancy with the right of survivorship, or in other ways that
avoid probate, and the advantages that you might gain. For more information on
ways to avoid probate, see the following Ohio State Bar Association
publications: "What you should know about . . . Living Trusts" and "What you
should know about . . . Probate."
Does a will let me avoid estate taxes and other 'death' taxes?
Whether or not there will be an estate tax depends primarily upon the value of a
person's estate. Deductions also are available for debts, expenses of
administration, or distributions to a surviving spouse or charity. However, a
properly drafted will might reduce the amount of taxes that have to be paid. An
estate-planning lawyer is skilled not only in the laws of wills and property,
but also must be familiar with both state and federal estate tax laws.
What happens if I do not make a will?
When a person dies without a will, or dies intestate, as the law calls
it, the property of the deceased is distributed to your nearest family members
according to a formula fixed by law. In other words, if you do not make
a will, you do not have any say about how your property will be distributed.
In Ohio, for example, if a husband dies without a will, leaving two or more
minor children, and the surviving wife is not the natural or adoptive parent of
any of the children, the wife would receive $20,000 plus one-third of the
remainder of the estate, and the balance would be given to a guardian for the
minor children. The widow or other suitable person would need to be appointed
guardian of the children by the probate court and would need to give the court a
surety bond. When each child reaches age 18, his or her share of the
guardianship estate would be required to be made fully available to the child,
regardless of his or her maturity level. Such proceedings can be expensive
and can create legal problems that might have been avoided had the husband made
a will.
Who will manage my estate?
If you make a will, you may name the person you want to manage the
administration of your estate (the executor). If you do not make a
will, the probate court will appoint someone (the administrator), whom
you may or may not know, to handle your estate.
Can life insurance take the place of a will?
No. Life insurance is only one kind of property that a person might own. If a
life insurance policy is payable to an individual, the will of the insured has
no effect on the disposition of the insurance proceeds. If the policy is payable
to the estate of the insured, the disposition of the proceeds may be directed by
a will; however, this would subject the proceeds to possible Ohio estate tax,
depending on the size of the estate. The careful person will have a lawyer and a
life insurance counselor work together on a life insurance program, particularly
in the area of estate planning.
Who should draft a will?
No sensible person would engage "just anyone" to fill teeth, take out an
appendix, or adjust a sensitive and complicated instrument. The person who wants
these services performed with a minimum of risk to self and property will engage
a trained professional person.
The drafting of a will requires professional judgment. A lawyer can help you
avoid pitfalls and choose the course best suited for your situation.
All information was obtained, with permission, from the Ohio State Bar Association, LawFacts Pamphlet Series