Your Last Will and Testament
A well-drafted will is the first step in preventing extended time, arguments, and costs associated with the probate process. Without a will, the deceased’s estate will follow Ohio’s predetermined and outdated estate plan for families. This can create additional problems when there are second spouses and children from previous marriages. By creating a will, you provide a baseline understanding for everyone about how you want your estate distributed.
In the simplest terms, a will tells everyone, including probate court, who should get your property when you pass away. This includes the ability to gift away a specific asset, such as a rare baseball card. A specific gift can also be a dollar amount, such as giving $1,000.00 to a church or charity. You may also leave a percentage gift. The residue is the part of the estate leftover after expenses and specific gifts. When it comes to leaving residue, an individual can distribute shares to whomever he wishes.
In addition to specific gifts involving money and personal items, an individual may gift anything in their probate estate. The probate estate includes everything in their name at the time of their death. Therefore, you may outright gift real estate. Family members may then co-own, sell or distribute this property.
A well-drafted will can avoid family conflict when it comes to gifts. In some instances, unsatisfied family members may look for conflict. An ambiguous will that can be construed different ways may find its way into a courtroom. Moreover, simply having a will may make it easier for family members to live with the desires of the deceased.
The person assigned with following through with the wishes in a will is called an executor. If possible, every will should nominate an executor as well as alternates. The executor will work with the probate court to ensure the terms of the will are followed when it comes to distributed. In doing so, an executor is entitled to reasonable compensation. Moreover, executors can work with lawyers to help them through the ropes of probate court.
A person should carefully think about who they want to be an executor. At a minimum, an executor should be someone you trust. They will make decisions that will affect the nature of the property you leave your loved ones. They may also have to serve the role of informal mediator to address disputes that occur in your family. Because of this, the executor should be capable of standing up to others when needed.
An ideal executor is able to manage money and record transactions well. When estates go through administration, an executor must provide the court with an inventory of everything in the estate and an accounting of every transaction made. While accountants make natural executors in many instances, you do not necessarily have to rely on professions. So long as someone’s own financial affairs appear to be in order, they may be able to accomplish the role without much difficulty.
For parents with minor children, naming alternate guardians for their children may be the most crucial part of a will. In Ohio, parents name substitute guardians inside of their will. When this occurs, the court will defer to this decision in the event both parents are deceased. Because the care for children is at stake, this is a choice parents should not take lightly.
We all have relatives that look great on paper. Money. Success. A functioning family unit at home. However, we may also know these people may not be our ideal choice to raise our children. They may have skeletons in the closet the family only knows about. Other times, it is simply true they do not share the same values as parents. Regardless, naming someone else as guardian in your will ensures the court will not go by external appearance, but rather by what you truly value in raising your children.
In addition to the characteristics you want instilled in your children, you should also think about the qualities of a guardian. If you and your spouse pass away, the guardian could be in charge of managing the assets of your children before they come of age. This means they should be trustworthy have a history of financial health. However, you may limit concerns about finances through the use of a trust or UTMA account with another person named.
Wills and Trusts
Having a trust is not enough to create a solid estate plan. You should utilize your will to ensure that your trust does what it is written to accomplish. Pour-over wills transfer the leftovers of wills into a trust. Since these items do not change ownership, they still remain in the probate estate. This is why funding a trust before death is an important step in reducing expenses associated with probate.
The interplay between wills and trusts allow you to have control over assets after you pass away. A trust can place restrictions on what property is used for, how it can be used, and who controls the distributions. Trusts ensure that the money is not spent all at once or for a purpose that the person controlling the trust dislikes.
Restrictions on Wills
A valid will provides countless safeguards and protections at ensuring your family legacy. However, wills are not all-in-one-tools. There are some things that wills cannot do under Ohio law. Because of this, additional planning may be needed for you to obtain your specific goals.
As indicated above, someone cannot leave property in a will with a condition. For example, if someone wanted to provide a gift for a college fund and only a college fund, a will cannot do this. Instead, the person will have to create a trust indicating that a distribution can only occur for a college fund. Strings attached to gifts are called conditional gifts. In the event someone writes a conditional gift in a will, the court may decide to ignore the condition or the gift altogether.
Oftentimes, people want to leave property to pets. However, in Ohio at least, pets do not have property rights. They are, however, property. An individual wanting to provide for their pets can do several things to ensure their care. They can gift not only the pet, but also a financial gift to offset the costs with the pet. In other situations, an individual may set up a pet trust. A pet trust sets up conditions for trust assets and spending requirements.
A frequent question people have with wills involves the issue of debt. While people can leave gifts for people, they cannot leave someone with the responsibility to pay for a debt. Some exceptions exist for this rule. For example, while someone may obtain a residence via gift, they may take it subject to a mortgage. However, the bank may call the note before this occurs to protect their creditor rights. In the alternative, the estate may cover the balance owed on the mortgage.
One cannot easily disinherit a spouse with a will in Ohio. This is because in probate court, a spouse can take against a will. This means that the spouse can obtain certain minimum allowances even if the will says otherwise. In order to take steps to truly disinherit a spouse or restrict rights to property, one must look at trusts as an avenue.
Wills only control probate property. Because of this, wills do not guide the transferring of non-probate property. This means accounts owned with joint survivorship do not pass through probate. Likewise, wills do not dictate property with designated beneficiaries such as life insurance policies or retirement accounts. When looking to transfer ownership of these policies, you must make these decisions before you pass away.
Valid Will Requirements
Downloading a form on the internet does not create a valid will. Rather, in the state of Ohio, wills have numerous requirements. The person signing the will must be over the age of eighteen. Additionally, this person signing the will must possess testamentary capacity. This means the person must be of sound mind and not under any undue influence. For a discussion on testamentary capacity, please see our section on will contests.
The makeup of the will signer is not the only requirement. Additionally, you must sign the will in front of two disinterested witnesses. This means they must not be set to benefit under the will. The will should be written, since unwritten wills and oral wills are valid only in very remote circumstances. Courts allow handwritten wills in some situations.
A will can only apply to one person. This means spouses cannot make a joint will. This is because each spouse has their own property rights. However, spouses may make wills that mirror each other’s to ensure that all family members receive the shares intended.
Powers of Wills
There are a number of extra options you can include in your will. These can run the gamut of gifting unusual or untraditional items to protections to limit the possibility of a contest. Regardless of what you choose to add, discuss the possible ramifications with an attorney before signing.
At some point, you may choose to disinherit a child or someone else otherwise entitled to a portion of the will. This could be for several reasons. For example, if a child already stands to receive a substantial piece of non-probate property, such as a life insurance policy, you may choose to disinherit under a will. Alternatively, the child may be a poor manager of money or have creditors. In this instance, not only would you want to consider a spendthrift trust, but also perhaps disinherit other items under a will. Of course, one does not need a reason or rationale as to why they choose to disinherit someone.
As mentioned in another section, while you cannot leave property to a pet, you can gift a pet to a loved one that you know will properly care for it. While there are not any checks on whether on what will happen to the pet, entrusting it to someone you know will care for it can prevent the need for a pet trust.
Updating and Revoking
You have the ability to update your will over time. An amendment to make to a will is called a codicil. A valid codicil must follow all of the requirements of a valid will. Codicils are helpful when making small minor amendments to your will. However, for larger changes, you may want to consider updating your will entirely.
When you update a will by writing a new one, you must revoke the previous one. This is often done in the language of the new will. You should consider updating your will after any significant life event in your family. This includes births, marriages, divorces, and deaths of family members and those standing to gain under the will. Oftentimes, updating your will can save time, expense, and ambiguity when it comes to applying the will in probate court.
The decisions you make in your will are your own. Sometimes, other people will not like your decisions. When this occurs, they take steps to challenge your will after you pass away. You can reduce this risk by including a no-contest clause in the will. A no-contest clause will make people think twice before challenging the will. This is because if they are unsuccessful, they will lose the opportunity to receive anything under the will.
After Signing Your Will
Signing your estate plan is not the last step. As mentioned previously, keep in mind any changes with your family that would require. These changes in your life may make it more likely that your estate plan should be changed in order to suit your needs.
People will need to find your will when you pass away. Specifically, they need to find the copy you signed in wet ink. Not a photocopy. Not a scanned copy. Because of this, make sure your will is easily accessible to family members. Your proposed executor must know where they can find the will. The attorney who will assist the executor in handling your estate should also know where the document is.
In some situations, you may decide it is best to deposit a will with probate court. This has several advantages. The court will easily be able to locate the original. Moreover, courts review the documents to ensure they are valid before storage. This can reduce some of the questions associated with admitting the will after your death.