LAST WILL AND TESTAMENT
Any adult that has assets (such as a house, car, or bank accounts) needs a will. For many people, the will is the central document of their estate plan. It directs where all their probate assets go upon death and provides instructions for the administration of their estate.
In the will, an executor is appointed who oversees your estate when you pass away. This person is also in charge of making sure your wishes are carried out. Also, If you have minor children, you will name a guardian for them. By not creating a last will and testament, you lose control over how your assets will be dealt with when you pass away.
Wills deal with probate assets. Probate assets are those assets that aren’t designated by contract to be transferred to a specific person upon death. These assets also must be in your name, and your name alone, at the time you pass away. For example, real estate, cars, and general household belongings are generally probate assets, while life insurance and retirement plans typically have beneficiaries designations, making them non-probate assets.
Lastly, assets that are titled to or “owned” by a trust are not probate assets and are subject to the terms of a will. A will provides instructions to your loved ones as to what you want to be done with these probate assets when you pass away.
Some people may want to avoid probate because of the length of time the process takes, and the expenses involved in it. A skilled estate planning attorney can discuss with you the different options you have and the tools that are available to you.
The executor of your will works with the Probate Court in the county you pass away in to carry out your wishes and distribute your assets. You nominate this person in your will. In Ohio, the courts prefer the executor to be a resident of Ohio, so that they are subject to this court’s jurisdiction. If the executor is not a resident of Ohio, the court may appoint a co-executor for you.
Under the guidance of the probate court in the county you pass away in, the executor will need to figure out what your assets are, pay any of your outstanding bills from those assets, and follow the instructions outlined in your will.
The executor declared in your will is not required to be bonded. “Bond” in this sense is similar to the type of bond you think of when someone leaves jail. The bond acts as an insurance policy should the executor run off with your assets.
However, this bond costs money that will be taken out of your estate before distribution to your heirs. If you choose someone you trust to be the executor, you likely won’t want to bond this person. By declaring an executor and waiving bond, you can reduce the cost of probating your estate significantly. Thus, leaving more money and assets for your heirs.
If you have minor children, you will name their guardian in your will. The guardian should be someone you believe is capable, and willing, to have custody of your children and take care of them until they reach the age of 18 or are otherwise legally emancipated.
If there’s money being passed down directly to your children through the estate without a trust, the guardian will also be the person who controls the distribution of those funds to them.
WHAT HAPPENS TO MY ASSETS IF I DON’T HAVE A WILL?
If you die without a will or estate plan in place, the laws of the state that you live in will control where your probate assets go. In Ohio, these laws are known as the Statute of Descent and Distribution. Generally speaking, these assets will be allocated through your family tree to your surviving spouse, children, etc. The court will appoint an administrator to oversee the management of your estate.
This administrator could be anyone as long as they have a definable interest in your estate. Meaning, they could be a creditor. Having a proper estate plan in place ensures that only the people you trust will be in charge of your estate when you pass away.
CHALLENGING A WILL
Certain formalities must be followed when creating a will. In Ohio, two disinterested parties are required to witness you sign the will. By definition, family members and others that stand to benefit under your will are interested parties.
You are also required to be of “sound mind” when you sign it. To be of “sound mind” you must understand who your natural heirs are, and understand the nature of your estate in terms of your assets. If you are of sound mind and not under the undue influence of others then the will is legally enforceable in the probate court.
When there are questions regarding if you were of sound mind, if the legal formalities were abided by, and/or if you were subject to the undue influence of others, a will contest can take place.
This process can greatly divide families and is expensive to try and resolve. This is another reason why it is important to speak with an experienced estate planning attorney about creating your will. They will ensure that all the legal formalities are followed and that your documents make your wishes very clear.
Having a properly drafted will ensures that the people you want to take care of things when you pass away will take care of it, and your assets will go to the people you want them to. Discuss your specific situation with the experienced attorneys at DuPont & Blumenstiel by calling 614-389-9711.
How does a will fit in with the rest of your estate plan? Download our Consumer's Guide to Estate Planning in Ohio here.
GREGORY S. DUPONT, ESTATE PLANNING ATTORNEY
Greg DuPont, JD, CFP®, is a well-respected estate attorney, financial advisor, public speaker, and published author. He has been serving clients as an estate and tax planning attorney since graduating from Capital University Law School in 1992 and added a wealth component to his practice over 15 years ago. He designed his firm to be the place where finance and law meet. He has been named one of Ohio’s Top 100 lawyers and was also recently named an Ohio Super Lawyer. Greg has been featured on WTVN radio and WCMH television. He is a life-long resident of Central Ohio and resides in Hilliard with his wife, Julia, and his daughter, Sophie.