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Who should have a Last Will and Testament? Everyone in Ohio who owns real estate or personal property benefits from having a Will. Many Ohioans die intestate, a fancy way of saying they die without a Will. Ohio Law details how the estate (assets) of someone who dies without a Will is divided.
A simple Will is not expensive. People make Wills to control what happens to their property after death, choose who is in charge of handling their estate, and appoint a guardian for their young children. A Will gives people control, even if they eventually suffer from mental illness, dementia, or Alzheimer’s.
In your Will you name the executor of your estate and your beneficiaries. The executor is the person who will handle your affairs upon death, be the court’s primary point of contact, and will usually hire an attorney to make sure the administration of your estate is handled properly. When choosing the executor of your estate, it is important to choose someone responsible, who you trust to understand and follow your last wishes. Beneficiaries are the people who receive your property.
To make a valid Will in Ohio, the testator, the person making the Will, must meet a handful of requirements. To be valid in Ohio, a person making a Will must:
While the requirements that a testator (person making a will) be at least 18 years old and sign the Will are simple, the other requirements may benefit from more detailed explanation.
Ohio requires that the will maker (testator) have capacity to make a Will, that they be “of sound mind and memory.” According to Ohio law, capacity means that the testator must be able to understand: (1) the significance of the act of making a Will; (2) the general extent of his or her property; (3) his or her relationship to family members; and (4) to whom the testator is giving property through the Will.
People suffering from various stages of Alzheimer’s, dementia, or other mental infirmity can still make a Will if, at the they make their Will, they are able to meet these requirements. Questions about a person’s capacity are a frequent source of probate litigation. If there is a question as to a testator’s capacity, an attorney may record the testator signing the Will to prove that the testator was of sound mind when the Will was made.
Sometimes people fraudulently attempt to convince someone to change their Last Will and Testament to include gifts to specific family members or to a specific organization. To be valid, it must be clear to the court that the person making or revising their Will was not under any such influence.
Some states allow for a verbal Will. Ohio does not. There are limited exceptions that allow for a verbal Will if a person is dying, does not have a written Will and, in the moments before death makes a declaration intended to serve as a Will in front of two people. Other than extenuating circumstances like these, verbal Wills generally are not valid in Ohio.
The testator must sign and date his or her Will in the presence of two competent witnesses. Ohio applies these requirements strictly. The witnesses must be over 18, not beneficiaries or otherwise named in the Will, not related by blood or marriage, and need to watch the testator sign his or her Last Will and Testament or hear the testator acknowledge his or her signature in the presence of the witnesses.
I have had clients come to my office thinking they had a valid Will, only to discover that the Will was invalid either because they had not signed it, or because the Will was not properly witnessed. In these cases an Administrator will be appointed, and the Administrator will have to post bond (insurance).
A Will is particularly important for people who have a higher risk of death, like fire fighters, police officers, soldiers and, of course, the elderly.
People with children should also have a Will because a Will can be used to name your children’s guardian if both parents of the child pass away. A testator can also use a Will to designate money that will be used to care for his or her children.
If you are writing your own Will and follow all the rules of Ohio Law, you might not need an attorney. But doing so carries a risk. Unless you are a lawyer, writing a Will for someone else could be problematic as you could be accused of practicing law without a license. If you do it for yourself, you wishes might be invalidated if you make a mistake.
It is always better to hire an attorney to prepare your Will. At the same time, we recommend people prepare their Durable Power of Attorney for Health Care and also a Durable General Power of Attorney. We give free additional consultation on how to avoid probate.
An Ohio probate attorney knows the requirements to make your Will valid, and understands that there are certain steps the executor should take before others. The Will is like a road-map for the division of your property. If the road-map isn’t quite right, you may run into problems. And unfortunately, if there is a question about what a person meant in a particular part of his or her Will, the deceased person is not available to answer it after death.
Hiring a lawyer will help make sure that your Will is written properly and is valid. Your attorney will ask questions to be sure you are not forgetting any details, and help you plan for how you want your estate to be divided. A lawyer can also advise if there is a better way to transfer assets. For example, in Ohio, you can use a Transfer on Death Affidavit for real estate property, jointly title bank accounts, and name people as beneficiaries on insurance policies to avoid probate. An Ohio estate planning lawyer can help!
Many people use online products to write their own Will. And for the people who use them, I hope they will not have problems. However, the danger of using DIY computer software to write a Will lies in "not knowing what you don’t know." A lawyer, on the other hand, is trained to understand specific issues relating to estate planning and how to prepare a Will. Having been through the probate process, a lawyer will anticipate potential pitfalls and advise on how to avoid them. And let’s face it, a Will is the kind of document that you really need to get right. You won’t have a second chance to write your Will if it doesn’t go right the first time.
You can change your Will as many times and as often as you choose. Rather than re-writing your entire Will, your attorney may use a Codicil if you are only changing one section of your Will, like at the birth of a child, a divorce, or the loss of a loved one.
A properly executed is valid until it is revoked. A Will is generally revoked when you write a new Will. You may also revoke your Will by destroying it with the intent of revoking it.
If you need a Columbus, Ohio probate attorney to prepare your Last Will and Testament, contact us today at Wolfe Legal Services. I work with people throughout the greater Columbus area, including Dublin, Bexley, Upper Arlington, Marysville, Hilliard, Delaware and Newark, and throughout Franklin County, Delaware County, Union, and Licking County. Call (614) 263-5297 any time or complete our online form.
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