How Important Is It to Prepare a Will?

January 22, 2013

Probate Trusts and Estates

Last Will and testamentThings to consider in deciding if you need a will

These are some of the things to consider in deciding if you need to prepare a “last will and testament.”

If you own private property and want to dictate the future owner when the current owner is deceased, a will is the most common device to transfer ownership of private property upon death.  It is possible to dispose of only part of the decedent’s property at death; thus, some wills may be invalid in whole or in part.

If a person dies owning property not governed by a valid will, he or she is considered to be “intestate,” deceased without having written a valid will.  The statute of descent and distribution determines the basic provisions governing inheritance.  In Ohio, Ohio Revised Code (ORC) section 2105.06—the statute of descent and distribution-favors the nearest relative surviving the deceased in distribution of intestate property.

When there is no will, a surviving spouse and children are first to receive distribution of property.  If there is no surviving spouse or children alive when the decedent dies, other relatives inherit the intestate property depending upon their relationship to the deceased.  If you want to leave property to someone other than those who would inherit under the statute of descent and distribution, you must prepare a will.

 Appointment of an executor or administrator

Once a will is admitted to probate, the court appoints an executor.  This person has usually been named in the will.  The executor is responsible for seeing that the estate is properly settled according to the law.  If a person dies without a will or fails to appoint an executor in his will, the court appoints an administrator whose duties are the same as that of the executor.

The probate court is not bound to appoint the executor named in the will, but will normally appoint that person as long as they are qualified.

Requirements in making a will in Ohio

There are some requirements for making a will under Ohio law.  You must be 18 years of age or older, be of sound mind and memory, and not be under restraint.

There is often misunderstanding about the “sound mind and memory” requirement.  This does not mean the testator (the person preparing the will) is not disabled due to pain, illness or age,  It does not mean they may not suffer from mental illness or mental deficiency to some extent.

The testator must know who his or her family members are, the nature and extent of what he or she owns, and that the document he or she is creating is a will.  This is enough for legal capacity at the time the will is written.

If a testator’s property is unequally distributed and the distribution appears to be unfair, this does not necessarily mean the testator lacked mental capacity to make a will.  A will may disregard family members or friends of many years and still be valid.

The requirement that a testator not be “under restraint” means he or she must be free to choose to make a will in the manner he or she wishes.  There must be no evidence of coercion, defrauding or improper influence involved in the process.  The latter are all grounds to challenge the validity of a will, but can be difficult to prove.

Other requirements

Other requirements for making a valid will in Ohio are:

1)    It must be in writing

2)    It must be signed by the testator (Another individual may sign for the testator if this person does so at the specific direction and in the presence of the testator and two independent witnesses.)

3)    It must be confirmed by two competent, impartial witnesses.  (The witnesses do not have to know the contents of the will, only that the testator signed voluntarily.)  

What about an oral will?

You may have heard that it is possible to use an oral will to transfer property.  First of all, oral wills apply to personal property only—not real property—and the following conditions must be met in Ohio:

1)    The will is made in a “deathbed” situation and the testator believes he or she is dying

2)    The will is stated to two competent, impartial witnesses that the testator chooses

3)    The witnesses write out the will and sign it within 10 days of the “deathbed” statement

4)    The written will is filed with the probate court within six months of the testator’s death

5)    A testator can modify the terms of an earlier written will, for example, to change a beneficiary, but an oral will cannot revoke (cancel) a written will.

Witnesses as beneficiaries

It is also important to remember that witnesses cannot be beneficiaries—they cannot accept any gifts listed by the testator unless the witness is a heir, then he or she may receive a portion of the gift in the will equal to what he or she would have received as an heir.

Another requirement of a will is that it must be probated according to Ohio law.  This is the only way it can govern the distribution of the deceased’s property.  The will must be filed with the probate court which will consider any challenges and determine if the will is valid.  The court may order witnesses to the will to appear and testify about the genuineness of the decedent’s signature or the testator’s condition at the time the will was signed.

Relief from administration

All estates must be settled according to standard probate procedures, but estates totaling a relatively small amount of money, where everything is going to a surviving spouse, may be relieved from most of the formal steps of probate administration when the court is satisfied the deceased’s debts and taxes will be paid and property will be given to those entitled to it.

It is also becoming more common for people to use will substitutes such as living trusts to transfer private property to surviving spouses, heirs and other beneficiaries to avoid going through the probate process.

The law firm of Slater & Zurz LLP has been helping clients with probate litigation matters for more than 40 years.  Probate litigation includes such things as contesting wills or trusts, inheritance disputes and removal of fiduciaries and guardians.

To learn more about the assistance that can be provided, call Slater & Zurz at 1-888-919-4770 for a free consultation with an Ohio attorney experienced in probate matters or visit our website, probatelawyerohio.com.

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About slaterzurz

Slater & Zurz LLP is an Ohio law firm of highly experienced and respected attorneys. Over the last 40 years, we have developed a reputation for getting positive results for clients. We've been trusted with handling over 20,000 personal injury cases and our clients have received more than $120,000,000.

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