What is a Will anyway?
A Last Will and Testament (Will) is a legal document used in Probate court that describes where your assets go when you pass away and who has the authority to manage that process.
What’s in a Will?
A Will lists Beneficiaries, general and sometimes specific descriptions of the types of property that should be distributed through the probate process, the Executor(s) and their powers, and potentially Guardian(s) for any minor children.
Does a Will avoid Probate?
No, a Will does not allow your assets to avoid the Probate process. A Will is the set of Instructions for the Probate court when an Estate is opened.
There are other tools and methods, like trusts and beneficiary designations, that can help pass assets to your beneficiaries without having to go through the probate process.
What are the requirements for a Will to be valid?
The Ohio Revised Code has several sections devoted to Will requirements. In order to be considered valid, Ohio Revised Code section 5817.10 states that a Will must meet the following requirements:
- The will was properly executed pursuant to section 2107.03 of the Revised Code or under any prior law of this state that was in effect at the time of execution.
- The testator had the requisite testamentary capacity, was free from undue influence, and was not under restraint or duress.
- The execution of the will was not the result of fraud or mistake.
Additionally, Ohio Revised Code section 2107.03 requires the following:
Except oral wills, every will shall be in writing, but may be handwritten or typewritten. The will shall be signed at the end by the testator or by some other person in the testator’s conscious presence and at the testator’s express direction. The will shall be attested and subscribed in the conscious presence of the testator, by two or more competent witnesses, who saw the testator subscribe, or heard the testator acknowledge the testator’s signature.
For purposes of this section, “conscious presence” means within the range of any of the testator’s senses, excluding the sense of sight or sound that is sensed by telephonic, electronic, or other distant communication.
What are the benefits of having a Will?
There are many benefits to having a properly prepared and executed Last Will and Testament. The first a foremost benefit is the ability to decide for yourself where your assets will go and who will guide the probate process.
Alternatively, choosing not to have a Will means that by default, your assets will flow to your next-of-kin or possibly escheat to the State per the State of Ohio’s statute of descent and distribution under Ohio Revised Code section 2105.06 and the Probate Court will appoint an Administrator to manage your estate.
Leaving the probate process to the State to decide can lead to unforeseen complications, added expense, and may take a considerable length of time to complete.
A Will also can allow you to give additional authority to your Executor, including the ability to not be required to post a bond (insurance policy) to serve as Executor and the ability to name a resident co-executor if your named executor does not reside in Ohio.