Ohio Wills

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Ohio Will Requirements

The law governing Ohio Wills is contained in Title 21 Courts – Probate – Juvenile. All section numbers displayed on this page refer to this statute, unless specified otherwise. If you are at least 18 years old, then you may write a legal Will in Ohio. You must of course be of sound mind and memory and under no restraint. s2107.02

What are the formalities?

An Ohio Will must be:

  • In writing (whether handwritten or typewritten);

 

  • Signed at the end by the testator (person making the Will);

 

 

  • Attested and subscribed (in the testator’s conscious presence) by at least two competent witnesses who saw the testator sign. s2107.03

 

The term ‘conscious presence’ means within the range of any of the testator’s senses (excluding seeing or hearing by telephonic, electronic or other distant communication). Ideally, the testator and the witnesses must be in the same room and witness each others’ signatures. All witnesses must be 18 years or older. s2107.06

Can my spouse witness?

No. Any gift made to a witness of an Ohio Will becomes void. An interested witness will only receive the amount he/she would have otherwise received under the laws of intestacy (up to the amount of the gift). s2107.15 For this reason, you should always use two independent disinterested witnesses for your Will.

Inability to sign

If a testator is unable to sign the Ohio Last Will and Testament, then the statute allows the testator to direct another person to sign on their behalf. This must be done in the testator’s conscious presence and at his/her express direction. The witnesses must observe and hear the testator acknowledge the signature. s2107.03

Where can I deposit my Ohio Will?

An Ohio Last Will and Testament can be deposited with your county’s probate court for a fee of $1. The court must issue you with a certificate of deposit. The Will is kept in a sealed wrapper and cannot be opened until after your death. You may nominate a person to receive the Will once you die. s2107.07

Is there any way I can validate my Ohio Will?

Yes. Ohio allows any person who makes a Will to petition the probate court to declare that the Will is valid. s2107.081 The petition must include all parties named in your Ohio Last Will as beneficiaries and all persons who would be entitled to inherit under the laws of intestacy (chapter 2105). This right to petition is optional. It is a way for you to ensure that the Will has the best chance of being probated once you die. If you don’t petition to validate the Ohio Will while you’re still alive, then it doesn’t give rise to any inference or assumption that it doesn’t comply with the requirements. It simply means your executor will need to prove the Will after you die.

How do I change or revoke my Will?

If you had your Ohio Last Will and Testament declared valid by the probate court, then you may amend or revoke that document by petitioning the court and asking that the Will be revoked or modified. You must once again include and notify the appropriate parties 2107.084(c). If you don’t wish to go through the court process again, then you may remove the declared valid Will from the court’s possession and revoke or amend it yourself. s2107.33(C) If you did not have your Ohio Willvalidated (or removed it from the court) then you may modify the instrument by making a subsequent Will or Codicil. You can also make a completely new Will and revoke (cancel) your former legal Will. This way, there is only one document to interpret. Lawyers recommend making a new Will which expressly revokes all prior Wills and physically revoking the old Will. Physical revocation requires tearing, cancelling, obliterating or destroying the Will with the intention of revoking it. s2107.33(A) If the testator cannot physically revoke the Ohio Last Will and Testament himself, then the physical act of revocation can be performed by someone else if it’s done:

  • At the request of the testator and in the testator’s presence; or

 

  • Pursuant to the testator’s express written direction. s2107.33(A)

 

Does divorce cancel an Ohio Will?

No. Your Will remains valid. Only those provisions which relate to your former spouse (ie: giving him/her a gift or benefit or appointing your former spouse as an executor, trustee or guardian) become void. The same effect takes place if you separate from your spouse and draw up a separation agreement which fully and finally settles your property rights. s2107.33(D) Your Ohio Last Will ends up being interpreted as though your spouse died before you. It’s always best to draw up a new Will after any such life changing event.

What if I get married?

Marriage does not revoke an Ohio Will. If you do not change your Will after marriage, then your spouse is only entitled to the minimum entitlements under the statute if you die. s2107.37

Oral Wills

An Ohio Willmay be made orally to dispose of personal property only, if:

  • Two witnesses heard the testator speak the testamentary words;

 

  • It is reduced to writing and subscribed by the witnesses within 10 days;

 

 

  • The witnesses are disinterested (do not receive any benefit under the Will);

 

 

  • The witnesses can prove that the testator was of sound mind and memory and not under any restraint and that he/she called upon some person present at the time the words were spoken to bear testimony to such disposition as his Will.

 

 

  • The oral Will is offered for probate within six months after the testator’s death. s2107.60

 

The requirements of making an Ohio Will orally are quite strict and should only be used in circumstances of desperation. No lawyer would recommend relying on this provision to create a Will. You should always comply with the formal execution requirements for a legal Will.

Ohio Wills and Probate

Producing the Will

The court may issue a citation, attachment or warrant to compel the person who has possession of the Ohio Will to produce it before the court. A request for such order may be made by the executor or any other interested person. s2107.09 If the person having custody of the Will withholds, he/she may be committed to the county jail and kept in close custody until the Will is produced.

Proving the Will

The probate court has the power to admit an Ohio Last Will and Testament to probate simply on the face of the document (if it appears to have complied with the execution requirements). However, the court may request the witnesses’ testimony. s2107.18

Notice of Probate

Once probate has been granted, notice of the fact must be given:

  • within two weeks of the probate order;

 

  • by the estate fiduciary, the person who applied for probate, the applicant for a release from administration, any other interested person or by any such person’s attorney;

 

 

  • to the surviving spouse, all persons who would be entitled to inherit under intestate succession laws and to all beneficiaries named in the Ohio Will. s2107.19

 

The person who gives notice must file a certificate of notice with the court within two months after the fiduciary has been appointed. If no fiduciary has been appointed then the certificate must be filed within two months of probate.

What if the Will is not witnessed?

An Ohio Last Will and Testamentmay still be admitted to probate even if not witnessed if it can be proved:

  • the deceased prepared the document (or had someone else prepare it for them);

 

  • the decedent signed the document and intended it to constitute his/her Will;

 

 

  • two or more witnesses saw the decedent sign the document. s2107.24(A)

 

Do not rely on this provision in order to make a valid Ohio Will. Always follow the strict execution requirements. If the above requirements are established, then the executor may file an action to recover court costs and attorney’s fees from the lawyer (if any) responsible for the execution of the document. s2107.24(B)

What if the Will is lost, spoliated or destroyed?

The court may nevertheless admit the Ohio Willto probate if:

    • the applicant can clearly and convincingly prove:
      • the Will was executed with the required formalities;

       

    • the contents of the Will; and

 

  • no one is able to establish (by a preponderance of evidence) that the testator had revoked the Last Will. s2107.26

 

Appointing a Personal Representative

Once the Ohio Last Will & Testament is approved, the probate court issues letters testamentary to the executor named in the document. s2113.05 If the Will does not name an executor or give power to name an executor or if the executor is unable or unwilling to act, then the court appoints another personal representative by issuing letters of administration with the Will annexed. The administrator must be a suitable person who is a beneficiary named in the Ohio Will or who would have been entitled to administer the estate if the decedent died intestate (which includes the surviving spouse and next of kin). The Will may exclude any person from being granted letters of administration. If no person is deemed suitable, then the court may appoint some other suitable person. s2113.05

Disinheriting a Spouse or Child

Want to make your Ohio Will exclude a child or spouse? Matters you need to consider. Excluding an immediate family member cannot be achieved by simply omitting their name from your Will. Always consult a qualified attorney to provide you with the appropriate exclusion wording and to see if there is any other action you need to take considering your financial circumstances. You need to be aware that, like many states, Ohio provides minimum entitlements for an excluded spouse or child. These entitlements act as a protection even if you leave a nominal share in your Ohio Last Will and Testament.

What is my spouse entitled to?

  • A right to elect to take under the Will or under section 2105.06 (as though you had died intestate without a valid Will).

 

  • Allowance for support of up to $40,000 in money or property. s2106.13

 

 

  • A right to remain in the mansion house for up to one year after your death. s2106.15

 

 

  • One or two automobiles up to the value of $40,000. If your spouse chooses two automobiles then the one with the lower value is deducted from the support allowance. s2106.18

 

 

  • A watercraft, outboard motor or both. s2106.19

 

 

  • Dower. An estate for life in one third of the real property of which the consort was seized as an estate of inheritance during the marriage. s2103.02

 

Children

Don’t assume that an Ohio Will made prior to your child being born or adopted (which does not include your child) is enough to disinherit that child. The pretermitted child is entitled to a share of your estate. The share is based on how much the child would otherwise receive under the laws of intestacy and also depends on whether you have a surviving spouse. The same entitlement applies to a child who was absent and reported dead at the time of making the Ohio Last Will but later proves to be alive. Your Will does not exclude such persons simply by failing to mention them. You need to expressly and intentionally disinherit them. s2107.34

Contesting an Ohio Will

Any interested person has a right to challenge an Ohio Last Will and Testament.

Right to Contest

An Ohio Willcan only be contested if the testator didn’t have it declared valid in accordance with s2107.084 whilst he/she was still alive. s2107.71(A) If the Will was declared valid, it may only be challenged if:

  • the testator later removed the Will from the court’s possession; or

 

  • the interested person was not (but should have been) named and properly served as a party to the action in which the instrument was declared valid. s2107.71(B)

 

You cannot contest an Ohio Last Will & Testament simply on the basis that the testator didn’t have the Will declared valid during his/her lifetime. s2107.71(C)

Procedure for Contesting

The contest needs to be started by a civil action in the probate court where the Will was admitted to probate. The process is governed by the Rules of Civil Procedure (except as provided in s2107.71 to 2107.77). Each party has a right to demand a jury trial. s2107.72 The probate order is prima-facie (on the face of it) evidence that the Will is attested, executed and valid. The person challenging an Ohio Will may cross examine any witness to the Will to rebut this evidence. s2107.74

Grounds for Contesting

You cannot challenge an Ohio Last Will and Testamentsimply because you feel you should have received a larger share. You need to have a valid ground to contest a Will. Valid grounds relate to whether the Will is valid or not, including:

  • whether the testator was of sound mind at the time of making the Will;

 

  • if the testator had testamentary capacity (knowing the effect of signing a Will and the extent of their property and relationships);

 

 

  • whether the Ohio Will was executed properly;

 

 

  • whether there was any fraud, forgery or undue influence, duress or restraint.

 

If you have concerns over any of these matters, then you should contact an attorney to contest the Will on your behalf.

Parties

If an Ohio Willis contested, the following persons need to be made parties to the action:

  • any beneficiary under the Will;

 

  • all heirs under the laws of intestacy;

 

 

  • the executor or administrator;

 

 

  • the attorney general as provided by s109.25

 

 

  • all other interested parties. s2107.73

 

Time Limits

The time limit to file a Will contest expires three months after the certificate of notice has been filed in accordance with section 2107.19(A)(3). Disabled persons are required to commence an action within three months of having their disability removed. 2107.76

Ohio Intestacy – Dying without a Will

What happens if you die without an Ohio Last Will and Testament? Your real and personal property passes to your heirs in accordance with statute of descent and distribution.

Married Couples

If you are married and die without making an Ohio Will, then your spouse is entitled to the following portion:

  • if you have no children – the whole estate;

 

  • if all your children and grandchildren are also you spouse’s – all of the estate;

 

 

  • if you leave behind only one child or his/her descendants and your spouse is not the natural or adoptive parent of that child – first $20,000 plus one half of the balance;

 

 

  • if you have more than one child or their descendants and:
    • your spouse is not the natural or adoptive parent of any such children – the first $20,000 plus 1/3 of the balance.

     

  • Your spouse is the natural or adoptive parent of one (but not all) such children – the first $60,000 plus 1/3 of the balance.

 

Anything not passing to the spouse is distributed to your children in equal shares or their descendants per stirpes. This means if a child of yours has predeceased (his/her children receive that child’s share in equal portions). If your deceased child did not leave any children, then that share is divided among your surviving children or their descendants.

Not Married or Widowed

If you pass away without a valid Ohio Willand do not leave behind a surviving spouse, then your property descends to your heirs in the following order of priority:

  1. Equally between your children or their descendants (the children of a deceased child take their parent’s share equally);

 

  • Your parents equally or to the survivor;

 

 

  • brothers and sisters (or their descendants if deceased);

 

 

  • maternal and paternal grandparents or their descendants;

 

 

  • Next of kin;

 

 

  • Your stepchildren or their descendants;

 

 

  • To the state of Ohio.

 

Example Intestacy Situations

Not many people understand what actually happens if they die without making an Ohio Last Will and Testament. Here are some of the most commonly occurring examples of intestacy distributions: Intestacy distribution when wife dies without a Will leaving a husband and their children: Susan passed away without a Will. She had two children with her husband Paul. Her estate is worth $300,000. Who gets what? Paul: $300,000. Husband died – no Ohio Will – share of wife, their children and stepchild: Julia died leaving an estate of $300,000. She left behind her husband Joel & a child from a former partner but no will. Who gets what? Joel: $160,000, Julia’s child from former partner: $140,000. Intestate distribution when wife leaves children not belonging to husband: Crystal died leaving $300,000 and no will. She left behind a husband and 2 children from a former partner. Who gets what? Mike: $113,333, Crystal’s Children: $93,333 each. Widow Grandfather’s estate is distributed to children and grandchildren per stirpes: Greg died without a will. His estate is worth $300,000. He had 3 children with his wife (predeceased). Two of their children have already died, leaving a granddaughter from one child and two grandsons from the other deceased child. Who gets what? Surviving child: $100,000 (1/3), Granddaughter (single child): $100,000 (1/3), Grandsons (brothers): $50,000 each (share 1/3).

Ohio Will Forms

Writing a Will is the most important step you can take to manage what happens after your death. This document is best prepared by an attorney. If you wish to write a Will yourself, make sure to use the tools available on the internet including Will forms, Will templates and even Will software.

Note: Making a Will can be difficult. Before making an Ohio Will, we recommend you read some tips on making a Will including vital information on:

  • Distributing your property including specific bequests and the residue
  • Appointing an Executor
  • Creating a Trust
  • Appointing a Trustee to look after trust property of minor children or other beneficiaries
  • Designating a guardian for your minor children

Sample Will forms available as free downloads (printable PDF documents) to help create a Will:

Ohio Will Form: Married with adult children
Ohio Will Form: Married with adult and/or minor children, includes a trust for minor children
Ohio Will Form: Married with no children

Ohio Will Form: Single with adult children
Ohio Will Form: Single with adult and/or minor children, includes a trust for minor children
Ohio Will Form: Single with no children

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