Wills
How important is a Will?
An individual's Last Will and Testament is an extremely important document. Even if you believe that you don't have assets worthy of a Will (because you simply do not have a lot of assets or your assets are already the subject of a living trust), everyone should have a Will. As none of us knows the circumstances of our deaths, it is important to provide a mechanism for controlling the disposition of your estate. The Will does this.
This is extremely important in the wrongful death setting where a suit may be brought based upon the circumstances of your passing and against the offending party. Without a Last Will and you may be adding to litigation over whom your estate fiduciary should be and what bond should apply. There may also be additional reasons for having a Will, such as giving you the ability to designate whom you wish to serve as guardians for any minor children you may have.
What is a Will?
Will is a document that provides for the way in which a person's property will be distributed upon death. To be valid, it must meet certain formal requirements as provided by the laws of the state involved. The person who creates a Will and signs it is called the testator. Under Ohio law, the testator must be free from improper influences, must be at least 18 years old and must be of sound mind at the time that he or she makes their Will. With limited exceptions, a Will must be written. It must be witnessed in a special manner provided by law and signed in strict accordance with law. The easiest way to ensure that these conditions are met legally is to have the signing of the Will supervised by an attorney.
What is a codicil?
A Will may be changed as often as the person who wrote it wishes. Changes are usually made by the addition of a Acodicil.@ However, changes should not be made without the assistance and advice of a lawyer to ensure changes will be legally valid and not adversely affect other portions of the Will. A codicil requires adherence to the same legal formalities as those for the drafting, execution and witnessing of a Will.
A word of caution is necessary. You should never attempt to amend or change your Will (or your codicil) by writing over provisions, striking out provisions or making marginal notes. Doing so may only lead to confusion, uncertainty as to your intent. It may also result in litigation which challenges your Will (a Will Contest Action) or other proceedings to construe or interpret your Will. Such proceedings normally increase the costs of probate administration.
How long is a Will effective?
A properly drawn and executed Will is generally effective until it is changed or revoked. 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.
Does a Will increase probate expenses?
Not usually. 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, an administration under the supervision of the Probate Court is necessary.
A properly drafted Will may reduce expenses of administration in a number of ways. Provisions can be placed in wills that take full advantage of the "marital deduction" section of federal estate tax laws. In most cases it is possible to 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 all phases of probate law.
May a person dispose of property in any way by making a Will?
Almost, but not quite. For example, a married person can make a will that completely excludes his or her spouse, but the law of Ohio still provides the surviving spouse with an "elective share" in the probate estate. Also, a divorce revokes the portion of a will that refers to leaving property to the spouse who has been divorced. There are certain other restrictions a lawyer can explain.
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.
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, as well as current law. Deductions 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 must also be familiar with both state and federal estate tax issues.
What happens if I don't make a Will?
When a person dies without a Will, or dies "intestate" as the law calls it, the property of the decedent is distributed according to a formula fixed by law. In other words, if you don't make a Will, you don't have any say about how your property will be distributed. In Ohio, for example, if a man dies without a Will, leaving two or more minor children, the wife would take a fixed sum of money 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 could cost a lot of money and could 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 whom 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) to administer 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 proceeds. If the policy is payable to the estate of the insured, the disposition of the proceeds may be directed by a Will. 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. The drafting of a Will requires professional judgment. A lawyer can help you avoid pitfalls and choose the course best suited for your situation.