Ohio Wills, Trust, and Probate

Putting together a coherent estate plan is essential to ensuring that your family is protected and that your assets are disposed of correctly after your death. Estate plans may be comprised of several kinds of documents, the most common of which: will, trust, healthcare surrogate designation, living will, power of attorney and advanced care directive provide a roadmap and detailed instructions about your post mortem wishes.

Remember that it is imperative to revise your will whenever you go through major changes in your life, especially those changes that affect your family structure and situation (birth, marriage, divorce, death, incapacity, retirement, etc.). Whether you are just formulating your estate plan, or changing your plan, consult an Ohio estate planning lawyer to make sure that the paperwork is legally correct and workable.

Ohio Will

Incorrect language in your Ohio will may result in the invalidity of your will or the distribution of your assets in an undesirable way. A proper will in Ohio requires:

1. Witnesses: Two or more witnesses over age 18 must sign the will and see the testator sign the will. It is wise to avoid asking a beneficiary of your will to be a witness, but you may select anyone you want to witness your will.
2. Notarization: No, your will need not be notarized in Ohio.

If, in addition to signing the will, two witnesses, and the testator sign an affidavit swearing that the will was witnessed and signed properly, and the affidavit is then notarized, the will has been attested by self-proving affidavit. This means that when the will later goes through the probate process, the original witnesses to the will do not have to be located and brought before the court for the will to be admitted to probate. Finding witnesses years after a will has been signed can be complicated and very inconvenient. A self-proving affidavit is a useful option. Consult an Ohio lawyer who specializes in wills and probate to ensure that your will is drafted correctly and executed with the proper legal formalities.

Changing a Will in Ohio

There are several ways to change or revoke your will in Ohio:

1. Craft a new will which is inconsistent with the old will, thus revoking the old will; or, physically destroy the old will (by burning, canceling, obliterating, etc).
2. Amend your will by drafting a codicil (which is like an addendum to the old will), on a separate piece of paper and attaching it to your old will.

However you elect to change your will, make sure that the changes are witnessed and signed in accordance with the Ohio legal formalities required for the preparation of a will (see above). So that you can be sure that your wishes are carried out, make sure to notify an Ohio wills attorney about any changes you have made or would like to make to your will.

Ohio Trust

A trust offers an alternative vehicle for asset distribution after death. In many ways, a trust is a more flexible mechanism than a will, in part because there are so many different kinds of trusts (i.e., educational, charitable, inter vivos, life insurance, revocable, irrevocable). Further, it provides savings on estate taxes, a way to avoid the cumbersome probate process, and privacy.

Though highly useful, trusts can also be very complex to set up and maintain, so it is important to get in touch with an Ohio estate planning lawyer who can help you with this process and ensure that you set up the best trust instrument for your situation.

Ohio Probate

Any part of an estate not left to a specific person in a will, or any of the deceased’s property not mentioned in the will, will pass by the Ohio laws of intestate succession. This means that the law, and not the deceased, decides to whom to distribute the property, based on each person’s blood relationship with the deceased.

If an Ohio will is vague about who should receive certain property, or in what amount, or alternatively, if a deceased does not leave a will and his property passes by intestate succession, any interested individual may petition the court to determine who should receive property, and how much each individual should receive.

In Ohio, if an estate with a surviving spouse is worth less than $100,000, or if the estate is less than $35,000 and someone other than the surviving spouse is set to inherit, the estate may be Released from Administration. Similarly, an estate may qualify for Summary Administration if the gross estate is worth less than $45,000. These simple procedures allow the surviving spouse or beneficiaries to avoid the complicated probate process.

This non-exhaustive list of individuals may take from the deceased’s estate, based on the Ohio laws of intestate succession:

1. Spouses
2. Children (whether born in or out of wedlock or adopted)
3. Grandchildren
4. Parents
5. Brothers and Sisters
6. Maternal and Paternal grandparents
7. Half-bloods
8. Adopted Persons

• Not all of the deceased’s assets pass through the probate process. For instance, the following assets may avoid probate:
  • jointly held property—assets owned by both the deceased and one or more other parties. When the deceased dies, the deceased’s ownership interest in these assets (such as cars, shared houses, and bank accounts), passes directly to the other parties.
  • non-probate assets –assets that go directly to a beneficiary because the will clearly indicates that the property should pass to that particular person.
  • contract assets –assets set aside during the deceased’s life for a particular recipient, such as a life insurance policy, inter vivos trust, or IRA.

You should be aware that your will may be challenged even after it has been completed. As such, consult Ohio legal representation about any probate questions or concerns you may have.

Ohio Statutes

Ohio Statutes, Title 21 – Probate

1. Probate Code: Wills
   • Ohio Revised Code, Tit. XXI, Chp. 2107.
2. Probate Code: Intestate Succession
   • Ohio Revised Code, Tit. XXI, Chp. 2105, § 3.
3. Probate Code: Administration of Estates
   • Ohio Revised Code, Tit. XX, Chp. 2129.
4. Ohio Trust Code
   • Ohio Revised Code, Tit. 58, Chp. 5108.