And how probate works after you die
A last will and testament contains instructions about who gets your belongings when you die and lets you choose a guardian for your minor children. A will is the first step to creating a solid estate plan, which often includes other documents like a power of attorney, advance directive, or living trust. You can get a personalized estate plan from Policygenius.
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Anyone who is at least 18 years old can make a will in Ohio if they are of “sound mind and memory,” which is called testamentary capacity.
The testator can appoint an executor in the will who will carry out its terms and manage the estate. The executor must be at least 18 years old and does not have to be an Ohio resident if they’re related to the testator by blood.
Ohio wills must be signed by the testator (will writer) and witnessed by two competent individuals who are also at least 18 years old. The witnesses can be beneficiaries named in the will, but unless there are two other disinterested witnesses, they may have to forfeit part or all their inheritance if the court finds they had undue influence on the testator.
Handwritten wills are legal in Ohio, but they must be witnessed in the same manner as a typewritten will. (For this reason they are not considered true holographic wills.)
Oral wills are permitted under certain conditions, such as to give away personal property. Two competent disinterested witnesses must write down the will within ten days of hearing.
You can make your will in Ohio without a lawyer, as long it follows all the requirements set out by state law. Many people choose to create a will on their own, since an estate attorney can charge as much as hundreds or thousands of dollars to prepare your will.
If you want to make changes to your will in Ohio, you can do so by adding a codicil. Keep in mind that the codicil must be signed and witnessed again in order to be valid.
Learn more about how to make a will without a lawyer
A will does not need to be notarized in order for it to be a valid legal document. Notarizing the signatures of the witnesses can be very useful though, since it helps prove the validity of the will once the testator has died. This is typically done by including a self-proving affidavit with the will. However, Ohio does not allow for self-proving wills, the court will call upon the witnesses for testimony during probate even if the deceased had a self-proving affidavit.
In the state of Ohio, the testator can file a will in their county probate court for safekeeping. There is a filing fee of $25. The will should be in a sealed envelope that states the testator’s name as well as the name of the person who should receive the will upon the testator’s death (like the estate executor, for example).
During the testator’s lifetime, the will is not public; it is only available for the testator and whoever else they’ve authorized to view it.
Probate is the process of proving a will. Upon the testator’s death, the probate judge determines whether or not the will is a valid legal document. The testator’s family and loved ones may also contest the will if it is ambiguous or poorly constructed. (Ohio probate law actually permits the testator to have the will proved during their lifetime.)
It’s the executor’s job to initiate probate proceedings with the court in the county where the decedent resided. Depending on what the decedent owned and the value of the probate estate, the filing procedures to distribute deceased’s assets can vary. For example, a small estate in Ohio can avoid the formal probate process by applying for what’s known as a “release from estate administration.” There are two types of release, which is based on the dollar value of the probate estate.
The following assets aren’t subject to the probate process (and are therefore things you should never put in your will) :
Jointly owned assets
Transferable- or payable-on-death accounts (PODs), like a bank account or retirement account with a completed beneficiary designation
Property that passes through a transfer-on-death deed
Before the deceased’s assets can be distributed, the executor is required to pay any applicable estate taxes. The federal estate tax starts at $11.58 million and Ohio does not charge its own estate tax. (The estate tax exemption will increase to $11.7 million in 2021.)
When someone dies without a will, they have died in intestacy. Since there is no named executor, someone will act as personal administrator, performing the same duties. In Ohio, the surviving spouse has the priority to act as personal administrator.
If you die without a will in Ohio, the court will determine your heirs based on state intestacy law. This is how much a surviving spouse would receive under a few different circumstances:
|If the decedent is survived by||The spouse receives|
|A spouse only||Everything|
|A spouse and children from the spouse||Everything|
|A spouse and one child from someone other than the spouse||The first $20,000, plus 1/2 of the estate|
|A spouse and multiple children from someone else||The first $20,000, plus 1/3 of the remaining estate|
|A spouse, a child from the surviving spouse, a child/children from someone else||The first $60,000, plus 1/3 of the estate|
Otherwise, when there is no surviving spouse, then the estate passes according to intestate succession, which is based on a next-of-kin hierarchy. Here is the general order of intestate succession in Ohio:
Children, or their descendants
Siblings, or their descendants
Aunts and uncles, or their descendants (cousins)
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