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What
is a will?
A will is a document that provides for the way in which a person's probate
property will be distributed upon death. To be valid, it must meet certain
formal requirements as provided by the laws of the state involved.
Who
may make a will?
A person who makes a will in Ohio must be free from proper influences,
must be at least 18 years old and must be of sound mind.
How
is a will made?
With limited exceptions, a will must be written and signed. A will must be
witnessed by at least two persons in a special manner provided by law, and it
must be executed in strict accordance with the law. The easiest way to ensure
that these conditions are met legally is to have the signing of the will
supervised by an attorney.
May a
will be changed?
A will may be changed as often as the person who wrote it wishes. Changes
are frequently made by the simple devise of an addition called a codicil.
Changes in circumstances after a will has been made, such as tax law changes,
marriage, birth of children, divorce or even a substantial change in the
nature or
amount of a person's estate, may raise questions about the adequacy of
that will. All changes in circumstances require a careful analysis and
reconsideration of all the provisions of a will and may make it advisable to
change the will to reflect the new situation. However, changes should not be
made without the assistance and advise of a lawyer to ensure changes will be
legally valid and will not adversely effect other portions of the will.
How
long does a will last?
A will is effective as long as it is not revoked. A will is most often
revoked by the execution of a new will or codicil replacing the old, or when
the person who made the will destroys it with the intent of revoking it.
Does a will increase probate expense?
No. It costs no more to administer an estate when a decedent leaves
a will than when there is no will. Often it will cost less. When
there is a will, the executor distributes the estate to the parties named in
it. When there is no will, the probate court must determine who the
legal heirs are and then distribute the estate to them. In either case,
administration under the supervision of the probate court is necessary.
A will
may reduced expenses of administration in a number of ways. A will can
reduce taxes and expenses by taking advantage of the charitable or marital
deduction provisions of federal and Ohio estate tax laws. In many
situations, a will also can avoid the payment of a bond for the executor by so
providing in the will. These examples illustrate that a will can save
money for you and your family if it is drafted by a lawyer who is trained in
this area of the law.
How
large an estate is necessary to justify a will?
Everyone who owns any real or personal property should have a will
regardless of the present amount of the estate. Remember that a will
provides for the way that a person's probate property will be distributed upon
death, regardless of size and value. Further, estates grow in value
almost unnoticed through the repayment of mortgages, appreciation of stocks
and other investments, inheritances from relatives, and other sources.
May a
person dispose of property in any way by making a will?
Yes. However, Ohio law gives a surviving spouse and minor children
certain rights over property that cannot be defeated by a will. Talk to
a lawyer about these rights.
What
happens to property held in the names of both husband and wife?
Property held in the names of both husband and wife may not automatically
pass to the survivor upon the death of one of them. However, there are
some forms of ownership in which property does pass to the survivor
automatically. Sometimes it is to your advantage to hold property in
this manner. Other times it can be disadvantageous. An attorney
can advise you as to the type of property that can be held in joint tenancy,
or in other ways that avoid probate, and the advantages that you might
gain. For more information on ways to avoid probate, see the following
Ohio State Bar Association publications: "What you should know
about...Living Trusts" and "What you should know
about...Probate."
Does
a will let me avoid estate taxes and other 'death' taxes?
Whether or not there will be an estate tax depends primarily upon the
value of a person's estate. Deductions also are available for debts,
expenses of administration, or distributions to a surviving spouse or
charity. However, a properly drafted will might reduce the amount of
taxes that have to be paid. Wills written without consideration of
recent federal tax laws should be re-examined in light of tax law
changes. An estate-planning lawyer is skilled not only in the laws of
wills and property, but also must be familiar with both state and federal
estate tax laws.
What
happens if I do not make a will?
When a person dies without a will, or dies intestate, as the law
calls it, the property of the deceased is distributed to your nearest family
members according to a formula fixed by law. In other words, if you do not
make a will, you do not have any say about how your property will be
distributed.
In Ohio,
for example, if a husband dies without a will, leaving two or more minor
children, and the surviving wife is not the natural or adoptive parent of any
of the children, the wife would take a fixed sum of money ($20,000) and
one-third of the remainder of the estate. The widow or other suitable
person would need to be appointed guardian of the children by the probate
court and would need to give the court a surety bond. When each child
reaches age 18, his or her share of the guardianship estate would be required
to be made fully available to the child, regardless of his or her maturity
level. Such proceedings can be expensive and can create legal problems
that might have been avoided had the husband made a will.
Who
will manage my estate?
If you make a will, you may name the person you want to manage the
administration of your estate (the executor). If you do not make
a will, the probate court will appoint someone (the administrator),
whom you may or many not know, to handle your estate.
Can
life insurance take the place of a will?
No. Life insurance is only one kind of property that a person might
own. If a life insurance policy is payable to an individual, the will of
the insured has no effect on the disposition of the proceeds. If the
policy is payable to the estate of the insured, the disposition of the
proceeds may be directed by a will; however, this would subject the proceeds
to possible Ohio estate tax, depending on the size of the estate. The
careful person will have a lawyer and a life insurance counselor work together
on a life insurance program, particularly in the area of estate planning.
Who
should draft a will?
No sensible person would engage "just anyone" to fill teeth,
take out an appendix, or adjust a sensitive and complicated instrument.
The person who wants these services performed with a minimum of risk to self
and property will engage a trained professional person.
The
drafting of a will requires professional judgment. A lawyer can help you
avoid pitfalls and choose the course best suited for your situation.
The
information contained in this pamphlet is general and should not be applied to
specific legal problems without first consulting your own attorney.
(Updated
7/27/2004)
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