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What is a Last Will and Testament?

A last will and testament is a legal document that outlines a person’s desires regarding the distribution of their assets after death. The last will and testament, generally referred to as a Will, allows individuals to express their wishes on where and to whom a portion or parts of their possessions go. The testator creates a last will on behalf of beneficiaries, who would inherit their properties after the death.

Section 2107.02 of the Ohio Revised Code specifies the state's requirements for creating a last will and testament. Per the law, a valid will must be in writing, typed, or handwritten. In addition, the individual making the will must be 18 years or older and of sound mind. The will must contain the signature of the testator and two competent adults serving as witnesses.

Last Will and Testament vs Living Will: What’s the difference?

Although both are legal documents created by individuals to express their personal preferences regarding important life matters, they serve different purposes. For insurance, a will specifies a person’s desires regarding how their assets may be distributed after their demise. On the other hand, a living will is an advance directive expressing a person's desire regarding medical treatment when they are alive but unable to communicate. Consequently, wills become effective when the testator dies, addressing matters like the distribution of assets and guardianship of minors, while living wills are activated when the creator becomes incapacitated. It covers medical treatments such as end-of-life care.

Who Can Make a Last Will and Testament?

Anyone at least 18 years old and of sound mind can create a legally binding will in Ohio. A sound mind implies that the testator understands the nature of their assets and is aware of the consequence of creating the will. In addition, persons making a last will and testament must do so voluntarily and not as a result of coercion.

Why Would You Need a Last Will and Testament in Ohio?

Creating a last will and testament in Ohio allows the testator to direct the distribution of their assets, determining who gets what and when they are gone.

Benefits of having a Last Will and Testament in place

There are numerous benefits to creating a will, including:

  • It allows the testator to determine and specify how they want their assets and properties to be shared
  • A will allows the testator to appoint a person responsible for administering the estate and executing the will
  • A will allows the creator to determine who takes care of their minor children after they are gone
  • Having a valid will helps avoid Ohio’s intestacy laws, where the state distributes the deceased assets
  • A clear and comprehensive will reduces family conflicts and prevents legal disputes among beneficiaries
  • A valid will protects unmarried partners in long-term relationships, allowing the testator to provide for their partner after death
  • A will allows the testator to make provisions to support specific charities and organizations

Potential risks of not having a Last Will and Testament

Where there is no last will and testament in place, the Probate Court in Ohio will refer to the Ohio Interstate Succion laws to distribute the deceased assets. Therefore, not having a valid will in place can bring some potential risks, including:

  • The probate process initiated by the court is complex and time-consuming. Therefore, not having a will in place can prolong the distribution of assets to beneficiaries
  • The Probate Court process is expensive
  • The testator has no control over what each beneficiary gets
  • Where there is no will, the state intestacy law dictates the distribution of assets and may assign assets to unintended beneficiaries, such as distant relatives who are not part of the deceased immediate family.
  • Lack of a will can lead to conflict and disputes among family members
  • Where the state intestacy law is in place, unmarried partners or step-children of the deceased may not inherit anything due to their non-traditional family structure
  • Where the asset holder dies intestate, the court appoints guardians for minor children. The guardian may not be the deceased preferred choice
  • The deceased lacks control over their funeral wishes when there is no will in place
  • Where the deceased has a beneficiary that relies on government assistance, not having a will in place can be a deterrent to their receiving such benefits

Examples of situations where a Last Will and Testament can be useful

A last will and testament ensures that the testator's wishes are followed. It allows the deceased to provide for their loved ones after passing. Having a valid will in place can be particularly useful when minors or unmarried partners are involved. The following examples show the essence of creating a will:

  • Blended or Non-Traditional Families: Ohio intestacy laws prioritize the biological children and spouses of the deceased when distributing inheritance. Therefore, if the decedent is divorced and has an unmarried partner with stepchildren, they may not inherit anything. Creating a will allows the testator to include such partners and stepchildren, ensuring they are provided for after death.
  • Guardianship for Minor Children: Testators can make provision in their will to appoint a guardian to care for their children when they are gone. Designating someone as their guardian provides peace of mind, as the individual knows their children will be taken care of by trusted persons whose values align with theirs.
  • Protecting Business Interests: A valid will protects business continuity. It allows the testator to specify who inherits their ownership interest in the business and to appoint a trusted individual as their successor, ensuring that business operations continue while minimizing disputes amongst heirs.
  • Unmarried Couples with Joint Assets: Where an unmarried couple co-owns a property, the surviving partner may not automatically inherit the asset if there is no will.
  • Specific Bequests: A will allows the testator to pass on a valuable family heirloom to a particular individual. Without a will, the courts may assign such treasured items to someone who does not appreciate their value. In addition, a will allows the testator to donate to a charitable organization important to them to support their cause.

When does your Last Will and Testament take effect in Ohio?

A last will and testament in Ohio does not become effective immediately after the testator drafts and signs the document. Instead, it becomes effective only at the death of the creator of the will, the testator. Essentially, a last will and testament is ineffective while the testator is alive and only becomes an actionable document when the testator dies. At death, the legal process to settle the deceased estate begins.

The process of distributing the deceased's assets starts at the Probate Court. Per Section 2107:19 of the Ohio Revised Code, the executor must notify the surviving spouse and all other beneficiaries named in the will within two weeks of submitting the will to the Probate Court. The executor's notice to the beneficiaries must be in writing, stating that the will is at the Probate Court. The executor must keep them informed throughout the probate process.

How to Create a Last Will and Testament in Ohio

It is essential to create a will that is legally enforceable and clearly outlines each beneficiary's inheritance. The following steps help ensure that the testator creates a valid will in Ohio:

  • Step 1: Familiarize yourself with state laws on creating wills in Ohio
  • Step 2: Decide the property or assets to be included in the will. The testator can gather information on the assets and properties to be shared and the beneficiaries. The testator must obtain the identity of all beneficiaries.
  • Step 3: Choose an executor who becomes responsible for administering the estate
  • Step 4: Choose a guardian for minor children if applicable
  • Step 5: Draft the will. Include any specific instructions or conditions
  • Step 6: Sign the will with at least two witnesses. The witnesses must also sign the will
  • Step 7: Store the will in a safe and secure location
  • Step 8: Periodically review and update the will to ensure it remains up-to-date or reflects current circumstances

Ohio has specific legal requirements for creating and executing a last will and testament. Persons creating a will in the state must adhere to these state-specific laws to ensure that the will is valid and enforceable. These requirements include:

  • Age and Mental Capacity: In Ohio, people must be 18 years or older to create a valid will and testament. Emancipated minors may also create wills in the state. In addition, the person creating the will must be of sound mind and understand the nature of creating wills and the extent of their assets.
  • Written Document: Per Ohio law, wills must be written to be legally valid. Oral wills, also called nuncupative wills, are invalid in the state. However, the law permits oral wills for armed forces or marines members while in active military or naval services. Written wills may be typed or handwritten.
  • Signature and Witnesses: The testator must sign the will. Where the testator cannot physically sign the will, someone may sign in their presence on behalf of the testator. The testator must sign the will in the presence of 2 witnesses. The witnesses also must sign the will. Per Section 2107.023 of the Ohio Revised Code, a witness cannot be a beneficiary to the will, spouse of the testator, or someone closely related to the testator
  • Notarization: Attaching a self-proving affidavit to the will in Ohio is not mandatory. Nonetheless, including one in the will simplifies the probate process, allowing the executor to present the will to the courts without needing witness testimony.
  • Minimum Asset Threshold: Ohio does not have a minimum asset threshold to qualify for having a will. Regardless of the value of the testator’s asset, the state recommends a will for few, modest, or large estates.
  • Will Format: there is no specific format mandated for a will in Ohio, provided it complies with all compulsory legal requirements

There is no specific amount an individual spends in creating a valid will in Ohio, However, a person creating a last will and testament in the state may spend an average of $500. However, if the estate is large or complex or the testator works with an attorney to draft the will, they may spend up to $1,000. Other potential fees and costs include notary fees, probate fees, witness fees, fees for using a document preparation service, and storage fees.

Preparing a Last Will and Testament: How to Write One in Ohio -

Although Ohio has no specific format for drafting wills or any state-approved forms to fill to create a last will and testament, the testator needs to include certain required information to ensure the validity and enforceability of the will. The following information is required when creating a will in Ohio.

  • Testator Information: A valid will must include the identifying information of the testator. The testator must consist of their full legal name and address in the will.
  • Declaration of Capacity: An enforceable will must include a statement that the testator was of sound mind when creating the will
  • Revocation Clause: The testator must provide a clear statement expressly revoking any prior wills
  • Executor: A valid will must include the full name and address of the executor who will be responsible for administering the testator's estate and carrying out the instructions contained in the will
  • Distribution of Assets: A will drafted in Ohio must list the assets and properties the testator wishes to distribute to beneficiaries and include the names of the beneficiaries receiving those assets and properties.
  • Signature: For a will to be enforceable in Ohio, the testator must sign the will. Furthermore, two witnesses unrelated to the testator must also sign the will.

There are other information testators may include in the will. However, these fields are optional and will not invalidate the will. These optional fields include:

  • Self-proving Affidavit: Testators may include a self-approving affidavit to the will. The document must be signed by the testator and witnesses and notarized.
  • Appointment of Guardian: Where the testator has minor children, they may designate someone as their legal guardian. The testator provides the guardian's full name and address.
  • Personal Message: It is optional to include personal messages or instructions providing guidance or expressing wishes to loved ones
  • Contingency Plans: A statement-making provision for what should happen should a beneficiary or the executor predeceases the testator
  • Funeral and Burial Instruction: It is optional to include preferences for the testator's funeral and burial arrangement
  • Specific Bequests: The testator may use the will to include specific items or heirlooms to designated individuals

Although the last will and testament specify how a person wishes their assets and properties to be distributed upon their death, certain information or items should not be in a valid will. They include:

  • Detailed instructions on how to conduct the burial and funeral arrangements
  • Property held in joint tenancy or ownership where the survivor gets the right ownership
  • Illegal or impossible acts
  • Assets with specific beneficiary designations, such as life insurance policies or retirement accounts, cannot be included in a will.
  • Assets held in trust. The trust document typically specifies how the assets are distributed.

Completing a last will and testament accurately ensures the will is valid and enforceable. The following are some tips testators may use to ensure their wishes are clearly expressed and legally enforceable:

  • Understand Ohio state laws governing wills
  • Consult an attorney knowledgeable about wills and estate management laws
  • Use clear and concise words in the will to avoid ambiguity
  • Appoint a trustworthy executor and guarantor if applicable
  • Identify and list beneficiaries, matching them with specific assets to inherit
  • Sign and date the will
  • Notarize the will - this is optional
  • Review and revise the will thoroughly
  • Store the will safely and let the executor know its location

There is no mandatory recording format for the last will and testament in Ohio. However, persons creating a will in the state may choose to record the will with the Probate Court. Recording the will at the probate makes it easier for persons to locate the document after the deceased passes, In addition since the courts maintain a copy of the record, it reduces the risks of the original copy of the will being misplaced or lost.

How often must I update my Last Will and Testament?

Ohio law does not specify the timeframe for testators to update their last will and testament. However, reviewing and revising the will every 3-5 years or when a major life incident, such as marriage, divorce, or childbirth, occurs is recommended. Nonetheless, testators must follow certain legal requirements to ensure that their update will reflect their current wishes and comply with state laws. They include:

  • Revoking previous wills
  • Identify the changes or amendments to the will
  • Sign the updated will in the presence of 2 competent witnesses
  • Include the date of execution to clarify the version of the will that is the most recent

Certain factors necessitate the updating of a last will and testament in Ohio. Such factors may include changes in marital status, either married or divorced, and may require the testator to update their will to reflect their new status. Also, the birth or the adoption of a child can prompt the testator to update the will to include the child as a beneficiary and update the will to appoint guardians for the child.

Moving out of Ohio to another state may require the testator to update their will if it does not comply with the new state’s law. Lastly, changes in the testator’s financial situation, such as acquiring or disposing of a property or changes in income, may warrant the testator's updating their will.

Reviewing and updating a will is an important process. A review and update aims to capture and reflect the testator’s current wishes concerning their estate. Therefore, when updating the will, testors should make it a regular habit to review it. Furthermore, testators must compile a list of changes or updates to be reflected in the will. It is also important that they consult with legal practitioners when reviewing and updating the will. Testators must also remember to inform executors or guardians about the changes to the will.

Do I Need a Lawyer to Create a Last Will and Testament in Ohio?

No. Ohio state law does not legally mandate that persons creating a last will and testament in the state use the services of a legal practitioner. Persons preparing a will may utilize online templates, pre-printed forms, or create the document themselves. However, the drafted will must comply with Ohio laws on wills.

Nevertheless, while state laws do not mandate residents to hire a lawyer to create a last will and testament, it is important to consult with one to ensure the will complies with state law and reflects the individual's wishes. Engaging the services of a legal practitioner guides the testator, giving them advice and solutions that meet their specific needs. Also, getting a lawyer to create the will offers legal protection by ensuring that the will is valid and enforceable, giving the testator peace of mind that the will is in order.

What’s the Difference between a Last Will and Testament, Living Trust and a Medical Power of Attorney?

A last will and testament, living trust, and medical power of attorney are legal documents planning for the future. However, they serve different purposes.

  Last Will and Testament Living Trust Medical Power of Attorney
Purpose A will allows the testator to specify how their assets are distributed after death It is a legal entity created to hold and manage assets A medical power of attorney will enable individuals to designate a trusted person to make medical decisions on their behalf when incapacitated
Features Designates beneficiaries and names executor and guardians Retain control of assets. Designates successor trustees. Allows for transfer of assets without probate Names a healthcare proxy to make medical decisions on the principal's behalf
Jurisdiction Wills go through the probate process, which validates the will Passes directly to the beneficiaries without probate This applies to healthcare decisions
Activation The death of the testator activates the will The incapacitation of the principal activates living trusts, and a successor trustee manages the assets It becomes active when certain predetermined conditions are met

Can a Last Will and Testament Be Challenged?

Yes, a last will and testament can be challenged in Ohio. Section 2107.71 of the Revised Ohio Code permits a civil action from an interested party to contest the validity of a will. An interested person can contest a will by filing a complaint in the probate court of the county in which the will was admitted to probate. The person can opt to challenge the will for the following reasons:

  • If the testator is ruled to have lacked the mental capacity or was insane, under undue influence, or suffered from severe dementia when the will was executed
  • If the will was not executed through the proper process such as the testator signing off in the presence of the required number of witnesses
  • If there is evidence that the will was executed with the testator influenced by fraud, coercion, or duress
  • If the testator revokes the will parties to the will can contest this revocation
  • If the language of the will is contradictory and does not successfully and clearly spell out the true intentions of the testator

Challenging a will in Ohio must be within three months of filing the certificate per Section 2107.19(A)(3) of the revised Ohio Code.

The procedures for challenging a last and testament in Ohio include:

  • Prepare a complaint joining all the involved parties and file in the county where the will was submitted to probate
  • File a written request with sufficient copies to be served to each involved party
  • Pay the base court deposit of $160
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