Question 1

What is a will?

Accepted Answer

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.

Question 2

Who may make a will?

Accepted Answer

Any person who is at least 18 years old, of sound mind, and not under undue influence, may make a will in Ohio.

Question 3

How is a will made?

Accepted Answer

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.

Question 4

Why does a person need a last will and testament?

Accepted Answer

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:
1. Name an executor of the estate
2. Appoint a guardian for any minor children
3. Provide for the distribution of property
4. Provide for the creation of a trust or life estate
5. Provide for payment of debts
6. Designate the order of death in the event of a simultaneous death of the parties
7. Designate the powers given to the executor of the estate
8. Provide for payment of estate taxes
9. Reduce the possibility of will contests

Question 5

May I change my will after I have signed it?

Accepted Answer

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.

Question 6

How long does my will last?

Accepted Answer

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.

Question 7

Does having a will increase my probate expense?

Accepted Answer

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.

Question 8

How large an estate must I have to justify a will?

Accepted Answer

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.

Question 9

May I dispose of my property to any person or entity I choose under my will?

Accepted Answer

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.

Question 10

What happens to property held in the names of more than one person?

Accepted Answer

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.”

Question 11

Does a will let me avoid estate taxes and other ‘death’ taxes?

Accepted Answer

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.

Question 12

What happens if I die without a will?

Accepted Answer

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.

Question 13

Who will manage my estate?

Accepted Answer

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.

Question 14

Is life insurance distributed through a will?

Accepted Answer

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.

Question 15

What Is An Advanced Directive?

Accepted Answer

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.

Question 16

What are the Four Types of Advanced Directives?

Accepted Answer

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.

Question 17

What is the Difference Between a Living Will and an Advance Directive?

Accepted Answer

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.

Question 18

What are the Disadvantages of Advance Directives?

Accepted Answer

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.

Question 19

Can Family Override Advance Directives?

Accepted Answer

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.

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