April 19th, 2023- Isabelle Weber
Two-thirds of adults do not have a will, which is a “legal document that dictates how you want your assets to be distributed after you die.” A will is only one part of your entire “estate plan.” At the very least, having some sort of plan for after you die is best, but a will can be a useful tool to keep control over what happens to your property after you die. Typically, a will, among other things, identifies an executor, or the person who will be carrying out your wishes described in the document. There are many benefits to having a will, but as the data shows, not many adults choose to have one.
The lack of adults who have a will makes sense, considering that finding the motivation to draft a will or to have a will drafted for you, can be difficult. No one wants to think about dying one day or about everything they are leaving behind. It can be stressful to have to plan for where all of your property will go after your death, and it is sad and depressing to have to think about your own death. Additionally, perhaps you do not want to cause family drama by making decisions about who gets what upon your death. It is completely normal to feel like a will is not something you need or should focus your time on. However, creating a will, or even creating some sort of estate plan, is worth your time and energy.
The requirements for valid will vary from state to state. In Ohio, multiple requirements exist in order to validate a will. First, the individual for whom the will is must be at least 18 years old. Second, the individual must have a “sound mind and memory.” Basically, this means that the individual understands what it means to be making a will, understands the nature and extent of the individual’s property and relationships, and can make reasonable judgments about the matters the will controls. Third, the decision to create a will must be a free and voluntary decision. In other words, no one can coerce, persuade, or force you to create a will. Fourth, the will itself must be in writing and in some physical form. The will may be written by hand or typed on a computer if it is printed. Only in limited and rare circumstances can a will be oral. Lastly, the will, in its physical form, must be signed by you in the presence of at least two competent witnesses. The two competent witnesses must also sign the will. Importantly, the will does not have to be notarized.
Alternatively, it is possible for someone to die without a will. When someone dies without a will, that is known as “dying intestate.” If someone dies intestate, Ohio has laws that determine what happens to that individual’s property and assets, and in what order. Specifically, when there is a surviving spouse, the entire estate will go to that spouse. However, when there is no surviving spouse, but there are children, the estate will be split equally among the children. Without a spouse or children, the deceased’s parents will inherit the estate. Next in line after the deceased’s spouse, children, and parents are more distant relatives, such as aunts, uncles, nieces, nephews, cousins, etc. Finally, if no living relatives can be located, Ohio will inherit the entire estate. Although this seems like a relatively easy process because Ohio has already figured out how to distribute the deceased’s property and assets, the process is usually anything but easy. Additionally, given the success of who inherits your estate, you can imagine how your assets may not end up where you want them to be. This process can quickly become lengthy and costly for your loved ones.
To begin the distribution process after someone dies intestate, the state must first accept applications for and appoint an administrator of the deceased’s estate. After, the estate’s value must be determined, along with which assets need to be probated. The estate’s debts must be identified. There needs to be an inventory and appraisal of all assets. Then a final accounting must be filed. All of this must be done before any property or assets are distributed – before it is even determined who gets what. As you can imagine, this can turn into an extremely time-consuming process.
On the other hand, when you die with a will, you are already telling the court how you want to distribute your property and assets. Additionally, you can create a living trust, which allows you to manage your assets while you are still alive and prevent even more potential difficulties in probate court. However, even if you do not have any assets, a will is still important to have for multiple reasons, including if you have a spouse or minor children. For instance, if you have minor children, and you die intestate, the state will decide who gets your children. Oftentimes, though, people own more than they think. Specifically, you may have a car, checking and/or savings accounts, or furniture. Even if these items or the amount in your accounts do not seem significant enough to warrant creating a will, these are all things you would want to include in your will.
Preparing a will may not be at the top of your list of things to do, but having a will can help you and your loved ones. In fact, a will takes away additional stress from your loved ones upon your death because everything about your assets has already been decided. In addition, you took control to decide what happened to your property and assets – not the state of Ohio or the probate court. When you create a will, the power stays with you. For example, if you have minor children and want to leave property to them, your will can assign a “property guardian” to manage the property and money until the children are able to do so on their own. By creating a will, everything about your property and assets is already decided, which will definitely relieve some stress from your loved ones when they are already going through a difficult time.
Another advantage of creating a will is that you can prevent people from claiming your property if you do not want them to inherit anything. Unfortunately, it is possible that upon your death, family, and friends may come out of the woodwork hoping to get access to whatever you left behind. These people can be ones who you have not seen in years or, for whatever reason, you do not want them to acquire any of your property or assets. A will can help ensure only the people you want to receive any of your property or assets upon your death. You have the power to decide who gets your assets and when they get them.
The hardest part of drafting a will is getting started. It can be difficult to find the time and incentive, especially if you are not in a position where you feel the will is going to be needed any time soon. However, once you get started, everything should be must easier. After you have created a valid will, all you need to do is check in on it every once in a while and see if it requires to be updated. If you stay on top of things and update it once a year, or as required, you will be preventing a great deal of stress from your loved ones who are already going through a lot. Typically, your will should be updated whenever there are major life chances. Specifically, updates to your will should be made when you get married or divorced (or someone listed in your will gets married or divorced), you have children, your financial situation changes, you move to another state, your health status changes, or you acquire new assets.
The work and time you put in today to create a will and plan for your estate will ultimately save your heirs time and money in the future. Estate planning, including creating a will, is often overlooked in our society. People think they will be fine without a will or an estate plan in place for after they die, or they believe they do not need one. However, wills can be useful for everyone. Creating a will is worth your effort, time, and energy – not only to bring yourself a sense of peace but also to relieve any possible burdens from your loved ones upon your death.
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Deborah Nason, “’Your loved ones will already be in a state of trauma. The ramifications of dying without a will,” CNBC, LLC., https://www.cnbc.com/2022/10/29/here-are-the-legal-and-personal-ramifications-of-dying-without-a-will.html (October 29, 2022).
“Ohio will: Last will and testament requirements,” Free Will, https://www.freewill.com/learn/ohio-last-will-and-testament (Last updated January 7, 2022).
Edward L. Littlejohn, “Dying Without a Will: Ohio Decides Who Gets What,” Little John Law, LLC., https://www.littlejohnlawllc.com/library/ohio-inheritance-and-probate-when-there-is-no-will.cfm
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Roger Young, “How to Ensure Your Assets Will Be Distributed According to Your Wishes,” T. Rowe Price Investment Services, LLC., https://www.troweprice.com/personal-investing/resources/insights/take-care-of-your-heirs.html (February 7, 2022).
“10 Reasons You May Need to Update Your Will,” Legal Shield, https://www.legalshield.com/blog/estate-planning/10-reasons-you-may-need-update-your-will/?gclid=EAIaIQobChMImeHuncX--wIVGbrICh2ahQTxEAAYAyAAEgI37_D_BwE&gclsrc=aw.ds (April 20, 2021).
