Creating a last will and testament is a key part of estate planning. Taking the time to consider your assets and which loved ones you want to leave them to is an important process. Learn the answers to common FAQs about wills in the state of Ohio.
Table of Contents
- What If I Die Without a Will in Ohio?
- Who Can Make a Will in Ohio?
- Does Ohio Have a Statutory Will?
- What Types of Wills Does Ohio Accept?
- Can I Make My Own Will in Ohio?
- How Do I Make My Will Valid in Ohio?
- Can I Disinherit My Spouse in Ohio?
- Can I Disinherit My Children in Ohio?
- What Estate Planning Documents Should I Have in Ohio?
What If I Die Without a Will in Ohio?
Under Ohio law, a decedent who dies without a will dies “intestate.” Dying intestate means that instead of a will instructing how to distribute your assets, courts follow state laws and distribute them to their next of kin. So, if you have a partner and aren’t married or have stepchildren you haven’t adopted, they are left out of your estate.
What Does a Will Do?
A will is a legal document that allows the testator (the person creating the will) to determine who will inherit their assets after their death. In a will, the testator may do the following:
- Name a personal representative (sometimes called an executor), a fiduciary responsible for handling your probate estate. They file your will with the court, locate your assets, and distribute them among your loved ones.
- Identify property and name beneficiaries.
- Name a guardian for minor children. While the probate court ultimately decides if the guardian chosen can fulfill the role, parents’ wishes are almost always honored.
- Make charitable bequests.
- Name a caretaker for pets and set aside funds for their care.
Having a will speeds up the probate process for your family. Because you specify your wishes, a probate court won’t have to sort it out, saving time and money.
What Doesn’t a Will Do?
While a will can distribute a wide array of assets, there are some assets it has no authority over. These are called non-probate assets and pass outside of a will. They include:
- Life insurance policy payments (to beneficiaries other than to the estate itself)
- Property and real estate owned as joint tenants with the right of survivorship
- Trusts, including living trusts, and assets owned by trusts
- Funds in payable on death or transfer on death bank accounts
Wills also have no control over your assets or medical decisions during life. You can handle those matters with separate documents, such as a durable power of attorney and medical power of attorney.
Who Can Make a Will in Ohio?
There are specific rules for someone to make a valid Ohio will. You must meet the following requirements:
- Age: Any adult over age 18.
- Sound Mind and Memory: This means they must have the testamentary capacity or the ability to understand their assets, identify their heirs, and make and understand decisions about them.
The testator must not be under restraint or duress at the time of signing, and the will execution cannot result from fraud or mistake. For example, it would not be valid if the testator did not know they were signing their will.
Does Ohio Have a Statutory Will?
No. Ohio does not have a statutory will, a prescribed form you must use to create a valid will. You can create your own simple will customized to your needs or hire an estate planning attorney. Online resources such as FindLaw Legal Forms and Services help you draft a will complying with Ohio laws.
What Types of Wills Does Ohio Accept?
Most wills are typed or printed and signed by the testator. However, Ohio allows some exceptions to this standard.
- Handwritten Will: The testator may handwrite their will, but the testator must sign it at the end, and two competent witnesses must present for it to be valid.
- Oral Will: Oral wills are only allowed if the testator is ill and in their “last sickness.” An oral will can only distribute personal property and must be put into writing by someone and signed by two competent witnesses who are not beneficiaries under the will.
- Electronic Will: An electronic will is a will that is signed, witnessed, or notarized through electronic means. Ohio does not permit electronic wills at this time.
These types of wills may open to challenges since they can easily be tampered with or misinterpreted due to unclear handwriting or speech. Or there may be claims you made a will under undue influence. The best way to convey your wishes is in a typed or printed will that you personally sign in front of witnesses.
Can I Make My Own Will in Ohio?
Yes. You can create your own will in Ohio. There is no legal requirement to use an attorney to draft your will. If you know what property you own and who you want to receive it, you are ready to make your will. However, because a will is a legal document, it is best to do it through an online legal services company that meets Ohio state’s requirements, such as FindLaw Legal Forms and Services.
How Do I Make My Will Valid in Ohio?
To create a valid will in the state of Ohio, you should have it printed or typed in hard copy and meet the following requirements under Ohio probate law:
- Signature: The testator must sign the will themselves or have someone sign it for them while they are in the same room and there are two witnesses.
- Witnesses: You need two competent adults who are age 18 or older to witness your signature. If one of the two witnesses is a beneficiary under the will (an “interested” witness), their bequest is void, and they receive only their intestate share. Both witnesses cannot be interested witnesses. It is always best to use witnesses who receive nothing from the will (“uninterested witnesses”).
- Notary: Ohio has no requirement that a will be notarized.
- Self-Proving Affidavit: Ohio has no provision for a form called a self-proving affidavit. In some states, if the witnesses sign this form in front of a notary, they do not have to testify for the probate court to accept the will. Instead, Ohio requires that the witnesses must be able to testify to the Ohio probate court unless the beneficiaries of the will and family members waive this requirement. If a witness was competent at the time of the signing but cannot be located or is unable to testify within a reasonable amount of time during the probate process, the court admits the will to probate without their testimony.
Can I Disinherit My Spouse in Ohio?
While you do not have to leave anything to your spouse in your will, they have a statutory right to a minimum amount of your estate if you attempt to disinherit them. This statutory right is an “elective share,” ensuring a spouse inherits something.
If there is a surviving spouse and no children, the spouse can elect to take up to half of the estate. If the decedent has two or more surviving children, the spouse can take up to one-third of the estate.
In addition, the surviving spouse may elect to live in the decedent’s home (called “mansion house”) for one year and may receive two cars, one boat, and one year of support. A probate attorney can help you understand how to limit your spouse’s right to inheritance.
However, your spouse may waive any rights to the elective share in a pre-nuptial or post-nuptial agreement.
Can I Disinherit My Children in Ohio?
You have the right to disinherit a child in Ohio. However, if you wish to do so, you must expressly state you are disinheriting the child and why. Otherwise, the child may have grounds to contest the will and claim they were mistakenly left out.
What Estate Planning Documents Should I Have in Ohio?
In addition to a will, your estate planning should include the following for a complete estate plan:
- Power of Attorney. This legal document gives someone else the right to make financial decisions for you during your life if you cannot do so for yourself.
- Living Will. In a living will you can name someone who will make health care decisions for you if you are unable to make them for yourself and clearly spell out your wishes about end-of-life and life-sustaining health care. If you don’t make these decisions, the burden falls upon your loved ones.
Fortunately, making a valid will and creating other Ohio estate planning documents is easy with online estate planning templates.