“An ounce of prevention is worth a pound of cure.”
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. Any person who is at least 18 years old, of sound mind, and not under undue influence, may make a Will in Ohio.
A properly executed Will is valid as long as it is not revoked. A Will is generally revoked when a new Will is executed. Also, a Will can be changed as often as necessary. You may change your entire Will, or you may change only a part of it by using a document called a “Codicil.” Changes in circumstances that often necessitate changes to the Will include 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 to a Will must be made in the same formal manner that is required when making a Will in the first instance.
By having a properly executed and valid Will, you gain control over the distribution of your probate property at death, and you will reduce the costs of probating your estate. In fact, the savings to your estate are likely to be many times greater than the cost of obtaining a professionally prepared Will. The old saying, “An ounce of prevention is worth a pound of cure,” definitely holds true when it comes to having 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.
If you die without a Will, or “Intestate,” 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.
Probating an intestate estate (no Will), versus a testate estate (where there is a Will), takes more effort, is more time consuming, and is more expensive. 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 appoint an administrator (possibly someone who did not know you or your family) to follow Ohio law to guide and enforce the distribution of your assets. In either situation, the court must supervise the administration of your probate estate, but if you have a Will, the court will attempt to follow it.
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. 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 for additional probate court intervention, which once again reduces expenses.
When preparing a Will, this is a good time to also consider preparing a Healthcare Power of Attorney and a Living Will (these documents are referred to as “Advance Directives”), as well as a Durable Financial Power of Attorney. These documents certainly can “avoid probate” by eliminating the need for a guardianship or conservatorship if you become incapacitated. We can all hope that that will never happen, but having the right documents in place if it does is a smart choice for you and your loved ones.
I enjoy this area of law because of my role in bringing peace of mind to a client by helping them decide how their estate should be distributed upon death. Many people put off thinking about these things, but once they decide to deal with making the decisions, they always seem to experience a great sense of relief and comfort.