It is said that anyone can make his or her own Will. The scary thing about that is that it is true. A person can make his own Will, but he may not have the skill to do it right. Further, the Will only passes that property that does not pass some other way such a real estate or bank accounts that are owned jointly with a right of survivorship or with a POD (Payable on Death) directive. Life insurance also passes outside the Will. In my own family my grandfather had a Will that left his estate in thirds to his two daughters and their step-mother. The step-mother got everything because everything my grandfather had was held in joint ownership with my grandmother with a right of survivorship. When my grandmother died everything went to her brother (she never had children). My grandfather's intent was defeated by poor advice from his attorney about what property was going to be passed by his Will.
There are several important reasons for preparing a Will:
- Appoint an executor and successor executor.
- Appoint guardians and successor guardians for minor children.
- Appoint a guardian to manage funds and property for minor children.
- Direct property distribution.
- Provide for a trust or life estate.
- Provide a waiver of the executor posting bond.
- Designate order of death in the event of simultaneous death of parties.
- Provide for distribution of property in case of potential disclaimer by a beneficiary under the Will.
- Designate the powers granted to the executor.
- Provide clauses to reduce risk of Will contests.
If there is no Will, the courts will appoint an administrator to administer the estate and distribute property according to the Statute of Descent and Distribution. This law provides a Will for people who don't have one. Often the provisions of the law are not what the deceased would have wanted. Making a Will is sound business and should not be neglected. Anyone who owns property, real or personal, even though the amount may seem small, should have a Will. The individual making the Will can name the executor of his or her choice, rather than having the court name an administrator. Your legal advisor can help you with this important task.
Your Will should be reviewed periodically, as children are born and grow up, as you desire to change beneficiaries, or as your property situation changes. You may change your Will as often as you need to and the changes Will be valid unless you become insane or of unsound mind or are the under undue influence of someone to change the Will in a manner they want. The Will may be rewritten, or an amendment called a codicil may be attached at the end of a Will. Today, with attorneys commonly storing Wills on a computer, it is often easier to re-execute an entirely new Will than to make changes by codicil. If a codicil is used, it must be executed with the same formalities as the Will. The witnesses do not have to be the same persons who witnessed the previously drawn Will. Every Will should state at the outset that it is the last Will of the testator. Never mark up a Will; you may invalidate it.
The law protects the legal share of your surviving spouse. If the Will leaves the surviving spouse less than the share of the property to which he or she would have been entitled had there been no Will, he or she has the privilege of choosing whether to accept the Will's provisions or to take the share allotted by law. No such protection is accorded to children even if disinherited in the Will. Even though you have the right to leave your assets any way you wish, it is often prudent to take other actions to protect against Will contest actions by disgruntled heirs. For example, you can file your Will for approval by the probate court prior to your death. If approved by the judge, it cannot be contested after your death. It is recommended that every person have a Will, even if they think they have all property owned in non-probate form. Something may have been missed, or there could be claims by the estate, like accidental death, which cause probate property.
Statute of Descent and Distribution
There are laws in Ohio that direct how the property of a deceased person who dies without a valid Will is to be distributed. If a person without a valid Will dies with a spouse and no children, the spouse receives all the property. If a person dies and there is no surviving spouse, the property goes to the children or their lineal descendants. These scenarios and all others contemplated by the law are shown below.
Section 2105.06. Statute of descent and distribution.
When a person dies intestate having title or right to any personal property, or to any real estate or inheritance, in this state, the personal property shall be distributed, and the real estate or inheritance shall descend and pass in parcenary, except as otherwise provided by law, in the following course:
(A) If there is no surviving spouse, to the children of the intestate or their lineal descendants, per stirpes;
(B) If there is a spouse and one or more children of the decedent or their lineal descendants surviving, and all of the decedent's children who survive or have lineal descendants surviving also are children of the surviving spouse, then the whole to the surviving spouse;
(C) If there is a spouse and one child of the decedent or the child's lineal descendants surviving and the surviving spouse is not the natural or adoptive parent of the decedent's child, the first twenty thousand dollars plus one-half of the balance of the intestate estate to the spouse and the remainder to the child or the child's lineal descendants, per stirpes;
(D) If there is a spouse and more than one child or their lineal descendants surviving, the first sixty thousand dollars if the spouse is the natural or adoptive parent of one, but not all, of the children, or the first twenty thousand dollars if the spouse is the natural or adoptive parent of none of the children, plus one-third of the balance of the intestate estate to the spouse and the remainder to the children equally, or to the lineal descendants of any deceased child, per stirpes;
(E) If there are no children or their lineal descendants, then the whole to the surviving spouse;
(F) If there is no spouse and no children or their lineal descendants, to the parents of the intestate equally, or to the surviving parent;
(G) If there is no spouse, no children or their lineal descendants, and no parent surviving, to the brothers and sisters, whether of the whole or of the half blood of the intestate, or their lineal descendants, per stirpes;
(H) If there are no brothers or sisters or their lineal descendants, one-half to the paternal grandparents of the intestate equally, or to the survivor of them, and one-half to the maternal grandparents of the intestate equally, or to the survivor of them;
(I) If there is no paternal grandparent or no maternal grandparent, one-half to the lineal descendants of the deceased grandparents, per stirpes; if there are no such lineal descendants, then to the surviving grandparents or their lineal descendants, per stirpes; if there are no surviving grandparents or their lineal descendants, then to the next of kin of the intestate, provided there shall be no representation among such next of kin;
(J) If there are no next of kin, to stepchildren or their lineal descendants, per stirpes;
(K) If there are no stepchildren or their lineal descendants, escheat to the state.
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