Wills & Probate

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What is a will?

A will is a document that sets forth how a person would like to have his or her probate property distributed upon death. To be valid, a will must meet certain formal legal requirements.

Who may make a will?

Any person who is at least 18 years old, of sound mind, and not under undue influence, may make a will in Ohio.

How is a will made?

With limited exceptions, a will must be written and signed. A will must be witnessed in a special manner provided by law by at least two people who have no interest in the will, and it must be executed in strict accordance with the law. The best way to ensure that a will is properly executed is to have an attorney supervise the signing of the will.

May I change my will after I have signed it?

Yes; you may change your will as often as you wish. You may change your entire will or you may change only part of it by using a document called a codicil. You should have your will reviewed if you have a change in circumstances, such as a marriage, the birth of children, a divorce, changes in the nature or value of your estate, or if there are changes in the law. Changes in circumstances require careful analysis and reconsideration of all your will’s provisions to determine if it needs to be revised. To avoid potential unintended consequences, you should not make changes without the assistance and advice of an attorney.

 

How long does my will last?

A properly executed will is valid as long as it is not revoked. A will is generally revoked when a new will is executed. You also may revoke a will by destroying it with the intention of revoking it.

Does having a will increase my probate expense?

No. Generally it does not cost more to administer a will, and it actually takes more effort to administer an estate without a will. When you have a will, the executor distributes your probate property as you have directed in your will. When there is no will, the probate court will follow Ohio law to guide and enforce the distribution of your assets. In either case, the probate court must supervise the will’s administration.

A will may reduce administration expenses in a number of ways. A will can reduce taxes and expenses by taking advantage of the charitable or marital deduction provisions of federal estate tax laws. In many situations, a will can also reduce costs by waiving the requirement of a fiduciary bond for the executor. A will may also grant specific powers to an executor. These granted powers may reduce the need (and additional potential expense) for additional probate court intervention.

How large an estate must I have to justify a will?

Everyone who owns any real or personal property should have a will, regardless of the property’s value, because the purpose of the will is to ensure that the property is distributed the way you want it to be distributed, regardless of its value. Keep in mind, your estate may grow in value almost unnoticed through, for example, the repayment of mortgages, appreciation of stocks and other investments, or inheritances from relatives.

May I dispose of my property to any person or entity I choose under my 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 an attorney about these rights.

What happens to property held in the names of more than one person?

It depends. Property held in the names of more than one person may or may not automatically pass to the survivor upon the death of one of them. Typically, property held jointly without rights of survivorship will require the decedents’ portion of the property to go through probate for distribution. However, some forms of ownership allow property to pass automatically to the survivor or to a designated beneficiary upon the owners’ death. An estate planning attorney can help you plan the best way or combination of ways to own property. For more information on ways to avoid probate and to learn more about non-probate property, see the following Ohio State Bar Association publications: “What you should know about . . . Revocable (‘Living’) Trusts” and “What you should know about . . . Probate.”

Does a will let me avoid estate taxes and other ‘death’ taxes?

The value of your estate will determine whether an estate tax return will need to be filed. However, through the use of tax-planning techniques, a properly drafted will may help reduce the amount of taxes that have to be paid after your death. An estate-planning attorney is skilled not only in the laws of wills and property, but also must be familiar with estate tax laws.

What happens if I die without a will?

If you die without a will, or intestate, as the law calls it, your probate property will be distributed to your nearest family members according to a formula fixed by law. In other words, if you do not make a will, you cannot control who will receive your probate property. You also cannot choose who the court will appoint to administer your estate.

For example, imagine you are a man with two minor children and you die without a will. If your surviving wife is not the natural or adoptive parent of your children, she would receive $20,000 plus one-third of the remainder of your probate estate, and the balance would be given to a guardian for your minor children. The probate court would need to appoint your widow, or another suitable person, as guardian for your children, and that guardian would need to give the court a surety bond. Then, both children would receive their shares of the guardianship estate upon reaching age 18, regardless of their maturity level. Working out all of these details would be very expensive and time-consuming, and could have been avoided with proper estate planning.

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), to manage the administration of your estate. You may or may not know the person the court appoints.

Is life insurance distributed through a will?

Generally, no. If a life insurance policy is payable to an named beneficiaries, the will of the insured has no effect on the distribution of the insurance proceeds. If the policy is payable to the estate of the insured or if the policy does not list a surviving named beneficiary, the disposition of the proceeds may be directed by a will. You should consult an attorney and a qualified life insurance counselor to ensure the proceeds of your life insurance policy will be handled according to your wishes.

Who should draft a will?

The drafting of a will requires professional judgment. An estate planning attorney can help you avoid pitfalls and help design a will best suited for your situation.

 

What is probate?

Probate is a legal proceeding to administer certain kinds of property (called probate property) owned by someone who has died (the decedent), to see that claims, expenses and taxes are properly paid, and to see that the remaining estate is distributed to those entitled to receive it under the terms of the decedent’s will or under Ohio law. Probate property consists of all property titled in the decedent’s name and not transferable on death. It is distributed according to the terms of the decedent’s will or, if the decedent died without a will (intestate), according to Ohio law. A probate proceeding takes place in the probate court of the county in which the decedent lived. If the decedent also owned real estate in another state, additional proceedings may be necessary in that state.

 

What property is not included in probate?

Property that is not probate property (called nonprobate property), and therefore is not part of the probate proceeding, includes: property the decedent and another person held as joint tenants with right of survivorship; property held in a trust; accounts that are payable on death (POD) or will transfer on death (TOD) to a named beneficiary; and insurance or retirement benefits that are payable to a named beneficiary. Nonprobate property passes directly to a named beneficiary, survivor or successor in interest, without probate proceedings.

Probate property and nonprobate property may be subject to federal estate taxes.

Why is probate necessary?

Probate is necessary to give the executor or administrator the legal authority to control, safeguard and distribute the assets of the decedent’s estate. Probate also provides a process for the payment of outstanding debts, taxes and the expenses of administration, and for the distribution of the remainder of the estate to the beneficiaries and heirs.

What does probate involve?

Probating an estate requires that a person be appointed to conduct the administration of the estate. If there is a will, this person is usually named in the will and is called an executor. If there is no will or no person is named in the will, this person is appointed by the probate court and is called an administrator. The executor or administrator may be an individual, a bank or a trust company.

The executor or administrator manages the following tasks:

Caring for the decedent’s property;

Receiving payments due the estate, including interest, dividends and other income;

Collecting debts, claims and notes due the decedent;

Determining the names, ages, addresses and degree of relationship of all heirs;

Determining the names, ages and addresses of all beneficiaries, if there is a will;

Investigating the validity of all claims against the estate and paying all outstanding obligations;

Planning for all relevant estate and income tax returns when required and making the required payments;

Carrying out the instructions of the probate court pertaining to the estate and distributing the assets of the estate to the heirs.

The probate court judge and support staff supervise the work of the executor or administrator. This work may require the preparation and filing of legal documents, providing of notices, attendance at court hearings, securing of an estate asset appraisal, filing of an asset inventory, completion of final income tax returns and possibly gift and estate tax returns, an accounting of funds, final transfer of all assets to beneficiaries, termination of the probate proceeding and discharge of the executor or administrator by the probate court. Because of the complexity of these procedures, it is wise to get an attorney’s assistance.

If the total value of all property in the decedent’s individual name is $35,000 or less, the estate can be relieved from some of these administrative requirements. Where the decedent’s spouse is entitled to receive all of the estate’s assets, the amount that can be relieved from formal administration is increased to $100,000.

How much does probate cost?

The costs assessed by the probate court are based on a schedule of charges that the law has established for each type of document filed in the court. Costs typically are about $200. In most cases, the court must approve attorney fees charged for handling estate matters. Typically, attorney fees are based on an hourly rate for the actual services the attorney performs, or fees may be charged according to the probate court’s recommended fee schedule. The executor or administrator is entitled to receive a fee set by Ohio law, based on a percentage of the value of probate property and income, as well as the value of nonprobate property (excluding joint and survivorship property). An executor, administrator or an attorney may request additional fees for extraordinary services. Executor and administrator fees are taxable and frequently waived.

How long does probate take?

Claims against the estate may be made up to six months from the date of death. A small estate that does not require the filing of a federal estate tax return and has no creditor issues often can be settled within six months of the appointment of the executor or administrator. However, if a federal estate tax return is required, the administration of the estate can last more than a year. (Estate taxes are not due until nine months after the decedent’s death.) If there is an audit of an estate tax return, the administration can take up to an additional year or more, and an executor or administrator cannot safely distribute all of the estate assets until released from personal liability for estate taxes after the audit has been completed. An extraordinary administration involving a contested will or complicated tax litigation may take several years to complete. In many cases, however, distributions of most or all estate assets do not necessarily have to wait until all probate matters have been completed.

Do I need a will?

A properly drawn will assures you that, upon your death, your probate property will be distributed as you intended. It is important that you review your will periodically with your attorney in order to keep it up to date. A will is also the mechanism for choosing the executor and commonly provides for the nomination of a guardian where there are minor children. A will also can dispense with the requirement of a surety bond, for which an executor or administrator might otherwise have to pay.

Wills should be filed in the probate court as soon as possible after a person’s death. The law provides penalties for withholding or destroying a will.

If you do not make a will, your probate property will be distributed according to the Ohio Statute of Descent and Distribution.

 

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