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Judges Examining Document
  • What is a will?
    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.
  • Who may make a will?
    Any person who is at least 18 years old, of sound mind, and not under undue influence, may make a will in Ohio.
  • How is a will made?
    With limited exceptions, a will must be written and signed. A will must be witnessed in a special manner provided by law by at least two people who have no interest in the will, and it must be executed in strict accordance with the law. The best way to ensure that a will is properly executed is to have an attorney supervise the signing of the will.
  • Why does a person need a last will and testament?
    If no last will and testament is created prior to death, a person’s assets will be distributed according to state probate law. Often, the provisions of Ohio law are not what the deceased would have wanted. The creation of a last will and testament leads to several benefits which will allow a person to: Name an executor of the estate Appoint a guardian for any minor children Provide for the distribution of property Provide for the creation of a trust or life estate Provide for payment of debts Designate the order of death in the event of a simultaneous death of the parties Designate the powers given to the executor of the estate Provide for payment of estate taxes Reduce the possibility of will contests
  • May I change my will after I have signed it?
    Yes; you may change your will as often as you wish. You may change your entire will or you may change only part of it by using a document called a codicil. You should have your will reviewed if you have a change in circumstances, such as a 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 in circumstances require careful analysis and reconsideration of all your will’s provisions to determine if it needs to be revised. To avoid potential unintended consequences, you should not make changes without the assistance and advice of an attorney.
  • How long does my will last?
    A properly executed will is valid as long as it is not revoked. A will is generally revoked when a new will is executed. You also may revoke a will by destroying it with the intention of revoking it.
  • Does having a will increase my probate expense?
    No. Generally it does not cost more to administer a will, and it actually takes more effort to administer an estate without a will. 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 follow Ohio law to guide and enforce the distribution of your assets. In either case, the probate court must supervise the will’s administration. 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. In many situations, 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 (and additional potential expense) for additional probate court intervention.
  • How large an estate must I have to justify 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.
  • May I dispose of my property to any person or entity I choose under my will?
    Yes. However, Ohio law gives a surviving spouse and minor children certain rights over property that cannot be defeated by a will. Talk to an attorney about these rights.
  • What happens to property held in the names of more than one person?
    It depends. Property held in the names of more than one person may or may not automatically pass to the survivor upon the death of one of them. Typically, property held jointly without rights of survivorship will require the decedents’ portion of the property to go through probate for distribution. However, some forms of ownership allow property to pass automatically to the survivor or to a designated beneficiary upon the owners’ death. An estate planning attorney can help you plan the best way or combination of ways to own property. For more information on ways to avoid probate and to learn more about non-probate property, see the following Ohio State Bar Association publications: “What you should know about . . . Revocable (‘Living’) Trusts” and “What you should know about . . . Probate.”
  • Does a will let me avoid estate taxes and other ‘death’ taxes?
    The value of your estate will determine whether an estate tax return will need to be filed. However, through the use of tax-planning techniques, a properly drafted will may help reduce the amount of taxes that have to be paid after your death. An estate-planning attorney is skilled not only in the laws of wills and property, but also must be familiar with estate tax laws.
  • What happens if I die without a will?
    If you die without a will, or intestate, as the law calls it, 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. For example, imagine you are a man with two minor children and you die without a will. If your surviving wife is not the natural or adoptive parent of your children, she would receive $20,000 plus one-third of the remainder of your probate estate, and the balance would be given to a guardian for your minor children. The probate court would need to appoint your widow, or another suitable person, as guardian for your children, and that guardian would need to give the court a surety bond. Then, both children would receive their shares of the guardianship estate upon reaching age 18, regardless of their maturity level. Working out all of these details would be very expensive and time-consuming, and could have been avoided with proper estate planning.
  • Who will manage my estate?
    If you make a will, you may name the person you want to manage the administration of your estate (the executor). If you do not make a will, the probate court will appoint someone (the administrator), to manage the administration of your estate. You may or may not know the person the court appoints.
  • Is life insurance distributed through a will?
    Generally, no. If a life insurance policy is payable to an named beneficiaries, the will of the insured has no effect on the distribution of the insurance proceeds. If the policy is payable to the estate of the insured or if the policy does not list a surviving named beneficiary, the disposition of the proceeds may be directed by a will. You should consult an attorney and a qualified life insurance counselor to ensure the proceeds of your life insurance policy will be handled according to your wishes. Contact McFadden Law & Consulting in Granville, Ohio for a free consultation to discuss estate planning and wills. Our team will help guide you through the complex probate laws, allowing you to construct an estate plan that is best for you and your family. Whether you simply need a last will and testament, healthcare power of attorney, a living will, or wish to create an entire estate plan, our team will guide you through the entire process.
  • What Is An Advanced Directive?
    Death can be a sensitive and somber topic for many individuals. It can be challenging to sit down and focus on the decisions you want to implement once you have passed away. While challenging, these conversations are essential, especially if you have specific requests on how you would like your finances and assets handled. However, these are not the only things to consider when managing your estate planning. An advanced directive is a legal document that enables you to control your medical decisions in the future. For example, if you suffer from a tragic accident, develop a form of dementia, face complications from COVID-19, or experience a sudden illness, an advance directive will provide your family and medical team with explicit instructions on how you would like to proceed with medical care.
  • What are the Four Types of Advanced Directives?
    There are four types of advanced directives that you should consider during your estate planning. However, each state has its own laws on what it considers valid, so be sure to follow the specific legal requirements of your area. Living will – If you cannot make medical decisions on your own, whether at the end of a terminal illness or from being unconscious, the contents of a living will come into play. This legal document will only be consulted once two medical physicians have confirmed that the patient cannot choose how to proceed with medical care. Some of the typical details covered in a living will include: • Do you want your medical team to use ventilators or dialysis machines to keep you alive? • Do you want IV fluids or a feeding tube if you cannot drink or eat yourself? • Do you want comfort care or palliative care administered for pain? Durable power of attorney for health care – This legal document is also referred to as a medical power of attorney. It gives you the ability to designate a proxy who will make all health care decisions on your behalf if you cannot do so independently. DNR Order – A Do Not Resuscitate (DNR) order means you do not want CPR or an AED (automated external defibrillator) to be used if your heart stops beating or breathing stops. However, it is essential to remember that a DNR order only applies in the hospital. EMS teams are required to provide life-saving care outside of the hospital. Organ and tissue donation – Do you want to donate your organs and/or tissue after death? This information can be included in your living will. Additionally, most states allow you to have this designation on your driver’s license.
  • What is the Difference Between a Living Will and an Advance Directive?
    While many legal terms can be confusing, the difference between these two is relatively easy to understand. As explained above, a living will is a specific type of advance directive. On the other hand, an advance directive is a broad term that encompasses all legal documents that are created to address the issue of your medical care in the future.
  • What are the Disadvantages of Advance Directives?
    The main disadvantage of an advance directive is that it is a piece of paper. After a sudden accident, the doctor and medical team may not even know that this legal document exists if you go into the hospital. Additionally, different states have different requirements for an advance directive. If you are not aligned with the legal specifications of the state, then the medical team may not honor the document. Another concern surrounding advance directives is the quality of care. Some individuals worry that the doctor and medical team may fail to provide adequate medical care if an advance directive is presented. It is also important to designate a proxy, so you will always have someone available to advocate for the best care possible.
  • Can Family Override Advance Directives?
    An advance directive is a legally recognized document. This means that your medical team must follow your wishes, but it also means that you need to be very specific about what types of care you want and which forms of life-saving treatment you do not wish to have. The purpose of an advanced directive is to maintain control over your medical care, freeing your family and loved ones from having to make tough decisions. Including clear and thorough instructions in your advance directive can help to ensure that everything is carried out as you desire. For assistance with creating your own advance directive, contact our law firm to speak with an attorney.
  • What Is the Difference Between Expungement and Record Sealing?
    In Ohio, when case records are sealed, the case records are no longer available to be divulged as public records. When case records are expunged, the records are completely destroyed.
  • What Is the Process for Sealing/Expunging Misdemeanor Convictions and Bail Forfeitures?
    In Ohio, a person may file an application for both sealing and expungement of misdemeanor convictions and bail forfeitures. The application is filed with the court in which the case was held. There is a waiting period to file the application. For minor misdemeanor convictions, the waiting period is six months after the case’s ‘final discharge’. For all other misdemeanor convictions, the waiting period is one year after the case’s ‘final discharge’. For bail forfeitures, there is no waiting period. When a person files an application for record sealing/expungement of a misdemeanor conviction or bail forfeiture, the court holds a hearing. At the hearing, the judge or magistrate analyzes factors listed in the Ohio Revised Code and decides whether the sealing/expungement is granted.
  • What Is the Process for Sealing/Expunging Felony Convictions?
    In Ohio, a person may file for record sealing and/or expungement simultaneously or separately. However, the waiting period to file the applications varies. If the conviction is for a felony of the fourth degree or fifth degree, the waiting period for record sealing is one year after the case’s ‘final discharge’. If the conviction is for a felony of the third degree, the waiting period for record sealing is three years after the case’s ‘final discharge’. For expungement of a felony conviction, the waiting period is ten years in addition to the original waiting period after the conviction is eligible for sealing. When a person files an application for record sealing/expungement of a felony conviction, the court holds a hearing. At the hearing, the judge evaluates criteria from the Ohio Revised Code and decides whether to seal/expunge the case records.
  • Are All Convictions Eligible for Record Sealing/Expungement?
    No. Convictions for the following offenses are not eligible: Traffic offense listed in Ohio Revised Code Chapters 4506, 4507, 4510, 4511, and 4549 Felony offense of violence that is not sexually oriented Sexually oriented offense involving Ohio Revised Code Chapter 2950 Offense involving a victim under 13 (except for Nonsupport of Dependents) Offense which is a first-degree felony or a second-degree felony More than two third-degree felonies Domestic Violence Violating a Protection Order
  • What Is the Process for Sealing Not Guilty Verdicts/Dismissals/No Bills?
    In Ohio, a person may file an application for sealing case records when the case resulted in a not guilty verdict, dismissal, no bill, or pardon. The application is filed with the court in which the case was held. There is a waiting period to file the application. If the case was resolved with a not guilty verdict or dismissal, the defendant may file the application as soon as the not guilty verdict or dismissal is journalized. If the case was resolved with a no bill, the defendant may file the application two years after the no bill. If the defendant was granted a pardon, the defendant may file the application after the pardon is granted and the defendant has fulfilled any pardon conditions. When a person files an application to seal the records of a case which resulted in a not guilty verdict, dismissal, no bill, or pardon, the court may hold a hearing. At the hearing, the judge applies statutory criteria to the case and decides whether to grant the application for record sealing.
  • What Is The Difference Between Divorce And Dissolution Of Marriage?
    In Ohio, you have two options to end your marriage legally; dissolution of marriage and divorce. Both processes give you the same result – you and your spouse will no longer be married. However, the processes are different. In a dissolution, you and your spouse must agree to the terms before you file. Still, in a divorce, the courts will decide any undecided matters relating to the termination of your marriage. Simply put, dissolutions are typically better for couples in agreement, and divorces are necessary when matters remain unresolved.
  • What are the residency requirements for divorce in Ohio?
    The judge can grant you a divorce in Ohio if you have been a resident of Ohio for at least six months before filing for divorce. The judge can also grant a divorce if your spouse files for divorce, and s/he has been a resident of Ohio for at least six months. It does not matter if your marriage or the cause of your divorce happened in Ohio or outside of Ohio.
  • Do I need a reason to file for divorce?
    In the past, people would need to have a specific reason for wanting to divorce, like an incident of infidelity or domestic violence, in order for a court to allow the divorce to proceed. This led many people to feel trapped in an unhappy marriage. Thankfully, all 50 states now recognize no-fault divorces, which allow you to file for divorce just for the reason of no longer wanting to be married. This is quite beneficial if you do not want to air your dirty laundry in public court records by announcing the exact reason why you want your marriage to end. For example, when celebrity couples divorce, they usually put “irreconcilable differences” as the reason, which is a different way of saying it is a no-fault divorce.
  • What is an uncontested and contested divorce?
    Each divorce will be considered either contested or uncontested by the court. An uncontested divorce occurs when Spouse A hands a completed petition for divorce to Spouse B, and Spouse B sees no reason to make any changes before it goes to court for final approval. A contested divorce occurs if Spouse B decides one or more things proposed by Spouse A are unacceptable and should be changed. A contested divorce does not automatically mean courtroom litigation is necessary, but it does mean it is likely.
  • How do I begin my divorce?
    Have you decided it is time to end your marriage? You can start your divorce by creating a petition for divorce, which might have a slightly different legal name depending on your state or county. In Ohio, the document is called a “Complaint” for divorce. The petition needs to outline your entire expectations for your divorce, and your separate lives afterwards. It is advised you work with an Ohio divorce lawyer when making your petition to ensure it is legally sound and comprehensive. Once you are satisfied with your petition, it will need to be served upon your spouse, who then decides his or her response. Afterwards, your agreed-upon divorce petition will be filed with a local court, or you will need to go to court to resolve unfinished contests.
  • Do I need to go to court?
    No one but attorneys want to go to court. However, essentially everyone going through a divorce will have to go to court at one point or another. Even if your divorce is civilized and uncontested, you and your spouse will have to go before a judge at least once to get the divorce approved. Keep in mind that if you really hate the courtroom, you will need to go to it more often depending on how often you and your spouse fight over your divorce petition. A mindset of cooperation could help keep you both out of court.
  • Will mediation work for my divorce?
    Mediation is a fantastic alternate to traditional divorce procedures. During mediation, you and your spouse agree to meet with a neutral mediator to discuss how your divorce will pan out. The mediator is not there to take sides with one spouse or the other, nor are they there to make decisions. Instead, mediators help guide the conversation and answer any legal questions the parties may have. Meditation might work for your divorce if you and your spouse are on good enough terms to sit in a room together and genuinely try to cooperate towards one common goal: the fair and equitable ending of your marriage.
  • Will I get alimony from my ex-spouse?
    Spousal support, alimony, and spousal maintenance are all family law tools that help keep a spouse of lesser income on their feet during and after a divorce. There is nothing that will guarantee you will collect alimony from an ex-spouse just because you make less income than they do. Spousal support is generally only issued when there is a large disparity between both spouses’ incomes, the parties have been married for a time exceeding ten years, and the spouse of lesser income would fall into undue hardship without financial assistance, though exceptions to this general rule have been known to occur.
  • How is child custody usually determined?
    Out of all the processes involved in a typical divorce, child custody might be the most contentious and high-stakes. An Ohio family law court has a duty to assign child custody in a way that protects the child’s best interests. That is to say, the spouse who is best fit to be a parent will be assigned sole or primary custody. Parents will have an increased chance of being given primary custody if they have steady employment, a clean criminal record, no medical conditions, live in a safe neighborhood, and so forth.
  • What will it cost me to go through a divorce?
    It is natural for you to be wondering how much money it will cost to finalize your divorce. Unfortunately, it is also natural for there to be no exact answer to that question. Most divorce attorneys charge by the hour. The more complex your divorce, or the more you and your spouse fight over each detail, the longer it will take and the more expensive it may become. Hotly contested divorces will also require more court dates, and you are expected to pay a court cost each time you go before a judge.
  • Will my divorce take long to conclude?
    Along the same lines of thinking for the question about how much your divorce will cost, how long it takes your divorce to conclude is also not set in stone. It will vary depending on contested issued and the complexity of those issues. If we had to give an estimate, though, it could be said that a “fast” divorce will end in two months, an “average” divorce ends in six months to a year, and an “extended” divorce will take a year or two.
  • My spouse ran away – can I still divorce them?
    It might seem highly unusual but it is certainly not unheard of for a spouse to pack a suitcase and effectively disappear to start a new life. No matter why your spouse cannot be located, you can still file for divorce, but the process will be different and more complicated. You will be expected to make reasonable attempts to locate them and let them know you are filing for divorce. You may also need to post your divorce petition in public papers on the off-chance your missing spouse reads it. After a certain amount of time passes, which can vary depending on case details, you will be able to proceed with divorce as if it is uncontested.
  • What Is The Difference Between Divorce And Dissolution Of Marriage?
    In Ohio, you have two options to end your marriage legally; dissolution of marriage and divorce. Both processes give you the same result – you and your spouse will no longer be married. However, the processes are different. In a dissolution, you and your spouse must agree to the terms before you file. Still, in a divorce, the courts will decide any undecided matters relating to the termination of your marriage. Simply put, dissolutions are typically better for couples in agreement, and divorces are necessary when matters remain unresolved.
  • What Are The Benefits Of Seeking A Dissolution Of Marriage?
    A dissolution gives couples who wish to end their marriage a faster and less expensive way to do so. Couples who seek dissolution also avoid much of the hassle and stress associated with a divorce. Dissolutions are typically the better option as long as both parties can agree on the terms of their separation agreement.
  • What Do My Spouse And I Have To Agree Upon Before Getting A Dissolution?
    You and your future ex-spouse will need to agree on all matters relating to the termination of your marriage. These include: The amount of alimony (also known as “spousal support”) How the marital assets will be divided How the couple’s debt will be divided The allocation of parental rights A child custody and visitation arrangement The amount and duration of child support
  • Do You Have To Cite Grounds (Reason) When Filing For A Dissolution Of Marriage?
    No. Ohio domestic relations courts do not require spouses to state why their marriage ends to qualify for a dissolution of marriage.
  • How Much Does Dissolution Of Marriage Cost In Ohio?
    A dissolution is a much more affordable way to end a marriage. Filing fees are usually cheaper as they are often split between the spouses rather than paid by both spouses separately. Filing fees for an Ohio dissolution of marriage can be anywhere from $150 to $400. There is also less attorney involvement in a dissolution since the spouses are in agreement, which allows the couple to save even more money.
  • How Long Does It Take To Get A Dissolution Of Marriage In Ohio?
    Once a couple files for a dissolution, the process can take anywhere between 30 to 90 days. The only other factor that affects the length of time it takes to be granted a dissolution is how long it takes for the couple to agree to all of the terms relating to the ending of their marriage.
  • Is The Dissolution Of Marriage Process Faster Than Getting A Divorce?
    A dissolution is typically a much faster process than a divorce. This is because couples seeking dissolution cooperate and agree to its terms, allowing them to skip many steps required in a divorce. When couples seek a divorce instead, it likely means they do not agree on one or more issues. When they disagree, they must either go back and forth between their attorneys, seek the assistance of a mediator, or ultimately have a judge decide the unresolved matters on their behalf, which all make the process longer.
  • What Are The Ohio Requirements For A Dissolution?
    In Ohio, there are two requirements for dissolution; a residency requirement and a written separation agreement. Ohio requires that you or your spouse must have been an Ohio resident for at least six months before filing your dissolution paperwork. Couples must also have a written separation agreement that fully addresses all aspects of the termination of their marriage.
  • Do I Need An Attorney To Get A Dissolution Of Marriage In Ohio?
    If you and your spouse agree to end the marriage and all aspects of the dissolution, you will likely avoid much of the need for an attorney. However, it is always a good idea to seek advice from an Ohio dissolution of marriage lawyer. An attorney will explain your rights, guide you through the process, and review the final separation agreement to ensure it aligns with your best interests.

*Note - these answers are general in nature and should not be relied upon as each situation is different. Furthermore, these answers are based upon general principals of OHIO law and no other jurisdiction. Should you have questions, you should seek legal counsel to discuss your situation from the appropriate jurisdiction.

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