A last will and testament is an important step in planning the distribution of your estate (real and personal property) upon your death. Ohio wills permit the testator, the person writing the will, to provide for a spouse, children, other loved ones, and pets after his death as well as to name a personal representative for the estate.
Not to be confused with a will, an Ohio living will provides instructions should you become incapacitated and incapable of making decisions regarding your medical care.
Do you need a last will and testament?
Although a last will and testament is not legally required, without a will, state laws (called laws of intestacy) determine the distribution of an estate's assets. Because the outcome may not coincide with the decedent's (the person who passed away) wishes, it is generally advisable to create a last will and testament.
In addition to providing the opportunity to direct asset distribution, an Ohio last will and testament form also allows the testator to make a charitable gift, create a trust for any person, name a legal guardian for minor children, or create a “pet trust” in order to provide for the care of an animal after its owner’s death.
Before the terms of a will can be accepted, the will must be proven in probate court. Probate is the court-supervised process of distributing the estate of a deceased person.
Ohio offers “Relief from Administration” for the following estates:
- Estates valued at less than $100,000 if the surviving spouse is entitled to all of the estate’s assets; or
- Estates valued at less than $35,000 if the surviving spouse is not entitled to all of the estate’s assets or if there is no surviving spouse.
Intestacy: Dying without a will
Someone who dies without a will is called “intestate,” which invokes the strict laws of intestacy. In Ohio, in the absence of a will, a surviving spouse inherits the entire estate unless the decedent or surviving spouse also has descendants, in which case the spouse’s share varies.
If there is no surviving spouse, descendants, or parents, other relatives, including siblings and grandparents, will inherit depending on the closeness of the relationship.
Exceptions to the ability to distribute property
Not all property can be distributed according to a will. Some exceptions in Ohio include the following:
- Property owned in joint tenancy with right of survivorship
- Life insurance policy and retirement account proceeds
- Elective share of surviving spouse
Form a last will in Ohio
The basic requirements for an Ohio last will and testament include the following:
- Age: The testator must be at least 18 years old.
- Capacity: The testator must be of sound mind and memory and not under restraint.
- Signature: The will must be signed by the testator or by someone else in the testator’s name in his conscious presence, by his express direction.
- Witnesses: An Ohio will must be signed by at least two witnesses, who should not also be beneficiaries in the will, in the conscious presence of the testator. The individuals should have seen the testator sign the will or heard him acknowledge the signature.
- Writing: An Ohio will must be in writing, except for oral wills as discussed more fully below.
- Beneficiaries: A testator can leave property to anyone.
Other recognized wills in Ohio
In addition to wills as described above, Ohio recognizes the following types of wills in certain circumstances:
- Nuncupative (oral) wills: if made in the last sickness and reduced to writing and subscribed by two competent disinterested witnesses within ten days after the speaking of the testamentary words.
- Holographic (handwritten) wills: if executed according to the provisions for valid wills.
Changing an Ohio last will and testament
An Ohio will may be changed at any time by a codicil (an amendment to the will), which must be executed in the same manner as a will.
Revoking an Ohio last will and testament
The revocation of an Ohio will can be accomplished in the following ways:
- By executing a subsequent will;
- By executing some other writing that is signed, attested, and subscribed in the same manner as a valid will; or
- By “tearing, canceling, obliterating, or destroying ” the document with the intent of revoking it, done by either the testator or by someone else pursuant to the testator’s express written direction.
Note that in Ohio, if the testator gets divorced or has his marriage annulled or dissolved after executing a will, certain provisions in favor of the ex-spouse are revoked.
Ohio last will and testament FAQs
What happens if I die without a will in Ohio?
If you die without a will in Ohio, the state decides how to divide your property through laws called "intestacy." Typically, surviving spouses have the highest claim, even if you both have children together. But if you have children from a previous relationship or no surviving spouse, the law imposes certain distribution rules based on how your family is structured, as outlined in Section 2105.06 of the Ohio Revised Code.
What are the basic requirements to make a valid will in Ohio?
Anyone can create a will in Ohio as long as they’re 18 years old and have a sound mind. Your will must also be written down, either typed or handwritten, and signed by you. If you can't physically sign it yourself, someone else can sign for you while you watch and direct them to do it. Lastly, two witnesses must watch you sign it and then sign it themselves (Chapter 2107).
Can I write my own will by hand without witnesses?
Yes, you can write your own will entirely by hand in Ohio. This is called a "holographic will," and it's valid as long as the entire will is written in your own handwriting, you sign it, and you date it (even if there are no witnesses). However, a typed will with witnesses is usually safer because it's harder to challenge and you can be more specific about your wishes.
Who should I choose as my executor, and what do they do?
Your executor is the person who handles your affairs after you die, so choose someone you trust completely who is organized and responsible. They'll pay your bills, collect money owed to you, distribute your property according to your will, and deal with the court system. Good executor choices often include a responsible adult child, sibling, close friend, or your spouse.
Conversely, try to avoid choosing someone who lives far away, isn’t good with money, doesn't get along with your family, or might play favorites among your beneficiaries. It’s also a good idea to name a backup executor in case your first choice can't or won't do the job.
How do I choose a guardian for my minor children in my will?
You can name a guardian for your minor children in your will, and this person would raise your kids if both parents die. Choose someone who already has a good relationship with your children, shares your values about parenting, and is willing and able to take on this huge responsibility. Talk to these people before putting their names in your will to make sure they're willing.
Can I make an oral will in Ohio instead of writing it down?
You can only make an oral will in Ohio in very specific situations, and it's not recommended for most people. Oral wills (called "nuncupative" wills) are only valid if you're dying from an illness and you speak your wishes to two people who aren't getting anything from your estate.
The problem with oral wills is that they're very easy to challenge in court. People might remember your words differently, or family members might claim the witnesses are lying. It's much better to write down your will, even if it's just a simple handwritten note, because written wills are much harder to dispute.
How do I change or cancel my will after I've made it?
You can change your will by writing a "codicil" (an official amendment) or by creating a completely new will that cancels the old one. If you make a codicil, it must follow the same rules as making a will.
To cancel your will entirely, you can physically destroy it (like burning or tearing it up) while intending to revoke it, or you can write a new document that specifically says you're canceling your old will. It's generally recommended to review your will every few years or after any big life event to make sure it still reflects your wishes.
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