Wills & Estate Planning

Estate planning is important – no matter how large or small an estate might be.  Estate planning is the process of anticipating and arranging for disposal of the property of an estate.  Estate planning will ensure a deceased person’s assets and debts are properly administered.  Estate planning will also ensure important financial and healthcare decisions are made after a person’s death or incapacitation.  A properly planned estate can save both time and money.  A will is one of the most important documents required in any estate planning.

What is a will?

A will, also know as a last will and testament, is a legal document that serves many functions.  It provides for the transfer of a person’s property after death.  It can also name a will executor or administrator of the estate.  A last will and testament can also designate a guardian who will be responsible for the care of any of the deceased’s minor children.

Who may make a will?  What are the legal requirements that make a will valid?

Under Ohio law, the testator (the person who makes a will) must meet three criteria.  He or she must be:

  • Over the age of eighteen (18)
  • “Of sound mind”: this means a testator must be able to able to understand the function of the will
  • “Not under restraint”: this means the testator understands he or she is giving away the property in his or her will to the beneficiaries he or she chooses, and the testator is not being manipulated and/or coerced.

Additionally, the will must be in writing and signed at the end by the testator.  The signing of the will must be in the presence of two witnesses who are not named as beneficiaries under the will.  The witnesses must also sign in the presence of each other.  Lastly, the testator must acknowledge he or she is signing his or her last will and testament.

Why does a person need a last will and testament?

Family Estate planning document with writing handIf 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

Where is a will filed?

Wills can be filed with the probate court in the testator’s county of residence.  If a will is not filed in the county probate court, they should be kept in a safe place, such as a safety deposit box.

What is a living will?

Another form of will is the living will.  A living will is a legal document that permits a person to declare their intentions regarding future withholding or withdrawal of life-sustaining treatments when they are no longer competent.  This type of will is useful when a person is no longer capable of making informed decisions.  The living will becomes effective when a doctor determines the patient is incapacitated, suffers from a terminal illness, or is in a permanent vegetative state.

What does it mean to contest a will?

Occasionally, disputes arise as to the real intentions of the deceased.  Most often these disputes revolve around how much or in what way the beneficiaries will receive their share of the decedent’s estate.  Will contests can include disputes over the distribution of any of the decedent’s property, such as money, real estate, stocks, and bonds.

Who can contest a will?

A will contest can be brought by any person who has standing to do so.  A person is deemed to have standing if he or she:

  1. Is named as a beneficiary in the will
  2. Would inherit if the will was deemed invalid

When can a will be contested?

A will can be contested if a person with standing argues the will does not reflect the testator’s actual intent.  A person contesting a will would have to prove:

  1. The decedent was under duress when signing his or her will.  Duress can be caused by undue pressure or coercion to sign a will
  2. The decedent was mentally incompetent or did not understand what he or she was signing
  3. The decedent’s estate is being mishandled by the executor, or the wishes of the decedent aren’t being honored

Contact the Law Offices of Bergman & Yiangou in Columbus, Oh for a free consultation to discuss estate planning and wills.  Our attorneys 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, a living will, wish to create an entire estate plan, or feel you have standing to contest a will, our experienced attorneys will guide you through the entire process.